Silence.
"But maybe I can save you a few minutes," said Jaywalker. "When an Investigator Templeton from the state police invited you to attend a lineup, did you by any chance tell him that you had no intention of driving back up to New City for-let me check the transcript of the call so I get it right-quote, 'any fucking lineup'? Was that you?"
"He r ecorded that conversation?"
"Of course he recorded it." It was Jaywalker's turn to cover the mouthpiece. He didn't want Ludlow hearing the laughter in the courtroom, a good portion of which was coming from the bench.
"Well," said Ludlow. "I may have said something to that effect. It was late, I was tired, and-"
"Not something to that effect," said Jaywalker. "Were those your words?"
"I guess they were."
"Good night, Chet." And with that, Jaywalker slammed down the phone. Then, in the interest of completing the sign-off, he turned to Kaminsky and said, "Good night, David."
But Kaminsky couldn't have been much over thirty, if that. All he could come up with was a glance at his watch and a confused "Good night?" After all, it was three-fifteen in the afternoon.
Driving back to the city that afternoon, Jaywalker took stock of the day's proceedings. His victory in getting the lineup suppressed had not only been fleeting, but Pyrrhic as well. Concepcion Testigo would be permitted to identify Carter Drake at trial. True, the jurors wouldn't hear that he'd picked him out at a lineup six months ago. But that meant they wouldn't hear how flawed that lineup had been, and how it now might be contributing to Testigo's recollection. Jaywalker was free to introduce the lineup in order to show those things. But if he did so, he'd be opening the door, as the judge had put it, to the results of that lineup, and to the rigorous way Investigator Templeton had conducted it.
In other words, it was a classic heads-I-win, tails-youlose proposition. With Jaywalker and Drake as the you.
No, he quickly decided, he couldn't bring it up without hurting their chances even more. Luckily, the case wouldn't turn on it. It wasn't a whodunit, after all. Carter Drake had been driving the Audi. He was going to testify to that. That and the wasp.
Jaywalker turned on the radio, an ancient staticky AM thing with old-fashioned push-button settings. Jewish klezmer music came on from a local station.
Not a good omen.
15
ABSOLUTELY FAIR AND IMPARTIAL
"Good morning, jurors, and welcome to Part Two." The judge was standing, the better to project her voice and be seen by the two hundred people who filled the seats in front of her and, when they'd run out of seats, lined the walls of the courtroom. A hundred of them were jurors, or at least potential jurors. The rest were court personnel, troopers, lawyers, reporters, sketch artists and the just plain curious, provided their curiosity had been enough to prompt them to get out of their beds on a subfreezing morning and stand on line for two hours.
"My name is Travis Hinkley," she continued, "and I'm going to be presiding at this trial. The name of the case that you've been called in on is The People of the State of New York versus Carter Drake. And as most of you, if not all of you, know, it's a case that has been the subject of some publicity."
Some publicity? Jaywalker smiled at the understatement. For the past half hour there'd been an audible buzz in the courtroom as people mumbled to each other that they'd been right, that this was really it. This was The Case, the one about the rich goy from the city who'd gotten drunk and forced a vanful of kids from the yeshiva off the road and to their deaths.
Jaywalker had long ago lost count of how many jury trials he'd had, but the number had to be up in the hundreds. Never before, though, had he seen a jury so white, so devoid of minorities of any sort, and so openly hostile toward him and his client. "I'm half-Jewish, " he wanted to jump up and tell them. "I'm one of you!"
Justice Hinkley introduced the participants, asking all four lawyers and the defendant to stand in turn, so that the jurors could get a good look at them and see if they knew any of them. As Carter Drake rose from his seat, the room fell absolutely quiet. Drake had rejected Jaywalker's advice and overdressed in a gray suit, white shirt and red tie. A power tie, they used to call it. Not smart.
Eventually seventeen people acknowledged that they knew or were related to Abe Firestone, another two knew David Kaminsky, and one was engaged to Julie Napolitano. When a list of likely prosecution witnesses was read off, three jurors admitted knowing Alan Templeton, and one worked or had worked with Concepcion Testigo. Every single one of them, however, insisted that he or she could be absolutely fair, and the judge excused only one of them for cause. "Being engaged to one of the lawyers could be a problem," she allowed. The young man rose and stormed out of the courtroom, obviously upset that his objectivity had been called into question. At the prosecution table, Miss Napolitano thrust her lower lip forward and pouted cutely, to warm laughter.
No one said they knew Jaywalker, or Carter Drake.
Justice Hinkley spent the morning describing her own function and that of the jury, explaining basic principles of law, and excusing those jurors who claimed they couldn't serve because of one hardship or another. Jaywalker thought he'd heard just about every excuse there was, from the young child at home to the bedridden elderly parent to the dog that needed walking or the cat that needed feeding. He'd learned about longplanned vacations and short-interval bladders. He'd seen letters from doctors, dentists, priests, astrologists and drug counselors. He'd listened to people who couldn't be locked up during deliberations, feared retaliation at the hands of the mafia, and took instructions only from God. He'd heard native-born New Yorkers with names like Smith and Jones swear they couldn't understand English.
But this day he heard none of these things.
Everyone, it seemed, was willing to endure whatever hardship jury service might entail, for however long the trial might last. Had civic duty, a virtue nearly extinct everywhere else, somehow managed to flourish and thrive in Rockland County? Jaywalker had his doubts. What he was witnessing, he knew full well, was just another manifestation of the community's outrage. For once, those called to jury duty weren't just willing "to set all other business aside," as the court clerk had asked them to repeat in their preliminary oaths. They wanted to serve. They couldn't wait to serve.
Something else to worry about.
It was midafternoon by the time the judge turned the questioning over to the lawyers. Abe Firestone took the stage. He soon showed that he was capable of checking his combativeness at the door. He talked to the jurors with a folksy, good-humored ease. They listened to his concerns, followed his analogies, laughed at his corny jokes, and promised to convict the defendant if the evidence established his guilt beyond a reasonable doubt. "As I'm confident it will," Firestone added.
"Objection," said Jaywalker.
"Yes," said the judge. "Sustained. The jurors will disregard it."
As if.
"Sorry," said Firestone.
Right.
Five o'clock came, and Jaywalker still hadn't had a turn at questioning the panel. The judge broke for the evening, directing everyone to return at nine-thirty the following morning, and wishing them a safe trip home.
"How does it look?" Amanda asked him on their way to the parking lot.
How does it look? The evidence wouldn't begin until the following week, most likely. So far they hadn't picked a single juror. Jaywalker had yet to ask a question. Yet here was Amanda, wanting to know how things looked. What bothered Jaywalker wasn't the fact that her question was at worst stupid and at best premature. What bothered him was that he could answer it anyway.
"Terrible," he said. "It looks terrible."
Jaywalker got his turn the next morning, although an overnight snowfall made for a delayed start. January was a dumb month to be driving the Mercury back and forth to Rockland County. It had rear-wheel drive, bald tires and a heater/defroster that was temperamental, if one wanted to be charitable. He should have tried the case b
ack in September, he told himself, as his client had wanted him to. Sure, he'd done a lot of preparing since then, and a lot of obsessing. But nothing he couldn't have crammed into three weeks' worth of forced labor. And as far as defusing the passions of the community, it now appeared that the additional time had only solidified the outrage. He read that in the morning newspaper, heard it on his AM radio and saw it in the set faces of the jurors as he rose to question them.
It had long been Jaywalker's practice-and it was a practice that set him apart from just about every one of his colleagues-to settle on a game plan early, and then to stick to it. Other lawyers approached a trial with a let's-see-what-shakes-loose attitude. They played things close to the vest, asserting little, conceding nothing and waiting for weak spots to appear in the prosecution's case. In other words, they played conservatively, defensively, careful to keep their options open.
Jaywalker subscribed to that old overworked sports adage, the best defense is a good offense. He prepared as hard and as thoroughly as he could, so that even before the trial began, he knew what was going to happen. He knew the strong spots, the weak spots, and everything else there was to know about the prosecution's case. On the basis of that knowledge, he committed to a single, cohesive view of the case, a unified strategy he'd stick to, come hell or high water. And so far, precious few of his clients had either burned or drowned. In a business where other defense lawyers were forced to boast about partial acquittals, hung juries and even lengthy deliberations, Jaywalker never boasted. He never had to. Almost without exception, after the verdict sheet had been read and filed, his client would stand up and walk out of the courthouse with him, through the public entranceway. It was all the boasting he needed.
A natural extension of committing to a unified strategy was sharing it with the jurors early on. That meant telling them about it at the first available opportunity. That meant during jury selection. That meant now.
"A terrible, terrible thing happened back in May of last year," he began. "Eight innocent little children died, and one equally innocent adult. The man whose actions led to those deaths, the man whose actions caused their van to swerve and go off the road, sits here in this courtroom, right over there. He will tell you that, when the time comes." And at that point Jaywalker moved from the lectern to stand over his client, placing his hands on Drake's shoulders while still facing the sixteen people who filled the jury box. "What's more," he said, "my client had been drinking that day. He will tell you that, too."
There's an expression that goes, So quiet you could hear a pin drop. At that moment, the courtroom was so quiet you could have heard a pin rusting. You could have heard a pin thinking about rusting.
"Okay," said Jaywalker, back at the lectern. "Who's heard all they need to hear? Who's ready to convict my client right now?"
Silence.
"Come on, folks. Remember that oath you took yesterday, to answer all questions to the best of your ability? These are the questions. Forget about what you do for a living, how many kids you have, what magazines you read, and all those other softballs Mr. Firestone lobbed at you. That was the easy part. Now comes the tough stuff. You've just heard the defense lawyer concede that this defendant was indeed the driver of the Audi. That he did in fact cause the van to go off the road, leading directly to nine deaths. And that he'd been drinking. Be honest with me. Raise your hand if, as far as you're concerned, that's all you need to know."
It took about ten seconds, which might as well have been ten minutes. But finally a woman in the second of the two rows tentatively raised her hand, though no higher than her shoulder. Just in case anyone had missed it, Jaywalker pointed to her and asked her why.
"I mean, if that's all there is," she said uncertainly. "Unless he's going to tell us something else."
By that time, several of the jurors in the front row had turned their heads to see the woman who'd dared to speak their own thoughts. They seemed to be waiting for Jaywalker to bite her head off, or worse. Instead, all he did was smile, thank her, and say, "Of course."
The effect was almost comical. Before long another hand was raised, and another after that, until five of the eight jurors in the second row looked as though they were ready to pledge allegiance.
Epidemiologists have a term they use in describing how a pathogen that has previously been confined to one host species, such as mice, suddenly and inexplicably begins to spread to another, like monkeys or humans. The way they say it is that it jumped.
And there in that courtroom, right before everyone's eyes, the hand-raising jumped. It jumped from the back row to the front, and from there it spread out to either side. By the time the outbreak had peaked, no fewer than eleven of the sixteen people were sitting with one hand raised in the air. There was a veritable epidemic of jurors who were willing to admit they'd heard enough.
"All right," said Justice Hinkley. "Let me explain a few things."
The twelfth hand in the air was Jaywalker's.
"Yes?" said the judge.
"May I give it a try?"
She seemed to think for a moment, before nodding and saying, "Go ahead. But the first time you misstate the law, you're done."
To Jaywalker, no green light ever looked better.
He spent the next forty-five minutes explaining to the jurors why their reactions, as understandable as they might be, would unfairly deny his client a fair trial. Not that he lectured them. The rules, and his own better judgment, prohibited him from doing that. Instead, he wove his points into a question-and-answer format that eventually had them nodding their heads and agreeing with him.
There were three distinct reasons why, in spite of the things Jaywalker had earlier conceded-that his client had been the driver, that his actions had led directly to nine deaths, and that he'd been drinking-the case was far from over. The first was the presumption of innocence, which remained with a defendant throughout the trial and up to the moment a unanimous verdict was reached. Certainly none of the jurors were for dispensing with that, were they? The second was the burden of proof, which never, ever shifted from the prosecution to the defense. No argument about that, was there? And finally, the constitutional right to remain silent, and its logical corollary that a defendant's silence was proof of nothing and could never be used against him in any way. No one was for stripping away that protection, were they?
Halfway into the discussion, most of the hand-raisers were trying to apologize for their haste to judge the case. "Don't be silly," Jaywalker told them. "I would have answered the question the same way. But now we see how I would have been wrong, too."
"Might this be a good time," the judge asked, "to take our midmorning recess?"
"It would be a perfect time," Jaywalker agreed.
"Now," said Jaywalker, once they'd resumed, "I want you to forget about everything I said before."
There was a bit of uncertain laughter in the jury box, and a lot of confused expressions. But nobody looked bored. Every eye was on Jaywalker, waiting to see what he had in store for them next.
"Not r eally forget about, of course. Presumption of in nocence, burden of proof never shifting from the prosecution, and no inference to be drawn from a defendant's not testifying. That's all the law, as Justice Hinkley has explained to you and will explain again at the end of the case. And it's all terribly, terribly important. But just for now, just for a few moments, I want you to forget about it.
"Remember," he said, singling out the timid-voiced woman who'd been the first to raise her hand. "Remember when you said the case would be over for you unless he-" and here he pointed at Carter Drake "-were to tell you something else?"
She nodded, and opened her mouth to defend herself. But Jaywalker held up a hand to stop her. He wasn't looking for apologies.
"Well," he said, "you're going to get your wish. Forget the presumption of innocence. Forget who has the burden of proof. Forget that the defendant doesn't have to testify or call a single witness, and that his not doing either of those
things can't be used against him in any way. Because here's the thing. He is going to testify. We are going to call witnesses. And if you can just keep your mind open, you're going to learn e xactly what happened in the seconds leading up to the crash, and precisely what caused it. Because you know what?"
"What?" came a collective murmur.
"Because he's the only one who knows. He's the only one who can tell you. Will you keep an open mind and wait for that?"
Sixteen prospective jurors promised they would.
Not that it meant much. But at least he'd given them something to think about, something to wait for. And if he'd accomplished anything, it was to drive out into the open the notion that drinking, driving and death were enough. They weren't. There had to be more. There had to be causation. Which left a tiny bit of daylight. Just enough for a bug to crawl into. A wasp, say.
Before it was over, jury selection took four full days. Because it was a murder trial, each side was allowed the maximum number of peremptory challenges, twenty, to eliminate jurors for no particular reason. Jaywalker ended up using every one of his, Firestone only fourteen. In addition, the court removed another thirty-some for cause, as she had earlier for Ms. Napolitano's fiance. No less than six times, Jaywalker renewed his motion for a change of venue, pointing to the large number of jurors familiar with the case and ready to convict the defendant.
"This case made the New York Times, " said the judge after the jurors had been excused once again. "Hell, I'm told it made the London Times. Where would you propose we try it?"
No, she told him, Saskatchewan was out of the question. "Besides which, I think you handled that very well in your voir dire.
"
"Flattery will get you everywhere with me," said Jaywalker. "But it won't get my client a fair trial."
"Why don't you leave that to me," said the judge. "Haven't I given you plenty of leeway so far?"
Depraved Indifference j-3 Page 14