Depraved Indifference j-3

by Joseph Teller

  Jaywalker could only smile. Leeway became a funny thing in a criminal trial, he'd learned. About the only time a judge gave a defense lawyer leeway was when she was confident there'd be a conviction and wanted to make sure it would stand up on appeal.

  It was nearly five o'clock on Tuesday when Jaywalker muttered a final "Satisfactory to the defense" for Alternate Juror Number 4, completing the selection process. Not that Alternate 4 was really satisfactory. She was a retired parole officer, her husband a retired FBI agent, her son a state trooper. But he'd run out of challenges. The clerk swore in the juror, and the judge excused everyone until the following morning.

  Carter Drake's jury would have twelve regular jurors and four alternates. Of the twelve, seven were women, five men. There were two computer technicians, two schoolteachers, a psychologist, an accountant, a teacher's aide, a bank teller, an unemployed actress working as a barmaid and three homemakers. There were no racial or ethnic minorities of any sort represented. None. Six of the twelve were identifiably Jewish from their names, with at least three others Jaywalker considered likely. The youngest was twenty-seven, the oldest sixtyeight. The average age came out to just under fifty-five. All twelve had not only heard about the case but had followed it "closely or with some significant degree of attention" on television, in the newspapers, or both. Eight of them subscribed to, or were regular readers of, the Rockland County Register, the local paper that had crusaded against the "Audi Assassin" in the weeks following his arrest.

  All twelve promised that they could be absolutely fair and impartial.

  Jaywalker had picked a lot of juries in his day. With the possible exception of a case over in Cayuga County, where several farmers had showed up for jury duty chewing tobacco and wearing overalls but no shirts, this one had to rank as his worst ever.

  16

  JELLO HAIR

  If the media circus had died down a bit for the Wade hearing and jury selection, it was back up to three rings Wednesday morning, with Carter Drake's trial about to begin for real. Outside, an extra parking lot had been opened to the public, and three enormous trailers set up in front of the courthouse to accommodate the press, additional security personnel and a makeshift first-aid station. Across the street, the vans were back, with their satellite dishes and telescoping antennae bearing the logos and numbers of all the major networks and several cable channels.

  In the lobby, despite the addition of extra banks of metal detectors, the line waiting to go through them backed up and snaked out the door and around the corner. Several food vendors had set up their trucks and were doing a brisk coffee and doughnut business, and one enterprising young man quickly sold out his stock of battery-operated hand warmers to early-morning shiverers.

  By nine o'clock, Justice Hinkley's courtroom was filled to capacity. Anticipating as much, the administrative judge had ordered all other cases in the building postponed for the duration of the trial, and had set aside not one but two additional courtrooms to accommodate the overflow. Those rooms had been fitted with coatracks, extra rows of seats and oversize screens and speakers, so that those who'd failed to make the cut could still follow the proceedings via closed-circuit television.

  Jaywalker took it all in as he entered, making mental notes and smiling bitterly at the environment in which his client was expected to get a fair trial, free from outside influences. Just prior to opening statements, he renewed his motion for a change of venue for the fifteenth time, and for the fifteenth time Justice Hinkley denied it.

  Abe Firestone delivered his opening in workmanlike fashion, surprising Jaywalker with both his restraint and his command of the facts. He drew the obligatory comparison between his remarks and the table of contents of a book. Mercifully, he refrained from reading the indictment from start to finish, settling instead for listing the specific crime charged in each of its ninety-three counts. He told the jurors which witnesses he would call, and briefly summarized what each of them would contribute to his case. Finally, as all prosecutors apparently feel compelled to do, he predicted with confidence that at the end of the case, after all the evidence was in, he would address them again, at which time he would ask them to convict the defendant on all charges, including nine counts of murder. Why? Because the defendant's own behavior would prove not just beyond a reasonable doubt, but beyond all doubt, that he'd acted in a reckless manner, evincing a depraved indifference to human life.

  With that, he thanked the jurors for their attention and sat down, exactly forty minutes after he'd begun. If his opening had been less than riveting, it had certainly done its job. Had Jaywalker been sitting in the jury box, he would have been more than ready to vote guilty right then.

  But Jaywalker was sitting at the defense table. And he kept sitting there, just long enough to force Justice Hinkley to inquire if he, too, wished to make an opening statement. "Unlike the People," she reminded the jurors, "the defendant has no burden of proof, and therefore no duty to open."

  Just as he'd counted on.

  "Yes," he said.

  Jaywalker had been debating for weeks-for months, actually-whether to include the wasp story in his opening. On the plus side was his belief that it was generally best to get his client's side of the facts in front of the jury as soon as possible. And then there was his conviction that his own telling of the story would be better than Carter Drake's version. Drake, he felt, was likely to come off as a decent storyteller, but hardly a great one. Jaywalker, on the other hand, was one of the best. Not that he came by it naturally. It was more of an accidental by-product, he figured, of having spent his adult life first posing as a drug dealer, then defending criminals, and lately writing fiction.

  Lying, others might call it.

  In the end, he'd decided against including the wasp incident in his opening statement. To do so would put it out there too early, where the jurors would have it, but would have nothing but Jaywalker's word for it, nothing to corroborate it. It would be better, he'd convinced himself, to have it come from Drake's mouth, however imperfectly, and then to quickly back it up with the medical records Nicolo LeGrosso had dug up.

  The problem was that such a tactic would limit what Jaywalker could say in his opening. He hated the stan dard K eep-your-minds-open-until-you've-heard-all-theevidence approach that so many of his colleagues hid behind, and hated even more the Don't-rush-to-judgment mantra that Johnnie Cochrane had used to such success in a certain West Coast trial some years back.

  So he compromised.

  He conceded, as he had during jury selection, that his client had been driving the Audi that swerved across the dividing line and forced the van off the highway. "By doing that, Carter Drake's actions were the direct cause of nine deaths. And eight of those deaths ended the lives of this community's most prized treasure, its children." Furthermore, he again confessed, his client had been drinking earlier that afternoon, and by his own admission, drinking more than he should have, considering that he was going to have to drive home.

  Jaywalker left out the business about Amanda and Eric's having shown up, and Drake's refusal to let Eric drive illegally. Let the jurors hear that, too, from the defense witnesses. Let them hear firsthand Drake's regret over that fatal bit of miscalculation.

  Then he got to the point.

  "Once the prosecution finishes calling witnesses to tell you what they saw and heard and assumed and calculated from outside the Audi, we're going to put on the stand the one witness who can tell you what happened inside the Audi. Because he was there. He was in the driver's seat. He's the defendant, Carter Drake. The prosecution's witnesses may tell you the absolute truth, they may exaggerate a little, and some of them might even tell a lie or two. It doesn't much matter. Because until you hear Carter Drake's testimony, you're going to have no way of knowing what really caused him to swerve. And once you hear why, you're going to know immediately, and you're going to understand everything."

  Looking into their eyes, he searched for a spark, a glimmer, a sign that t
hey were finally with him at that moment. Was that a nod coming from Number 3, or just a stiff neck she was stretching? Was Number 6 leaning forward in his seat because he was buying it, or because his hemorrhoids were bothering him? And there in the back row, Number 10. Did her hint of a smile mean Jaywalker had her hooked, or was she seeing right through his act?

  And the thing was, as with so many things that came up at trial, he had only a split second to decide. Did he go on, and begin talking about the rest of his witnesses? Did he take Firestone to task for having predicted what he'd be asking for in his summation before they'd heard a word of testimony or seen a single shred of evidence? He'd even settled on a term for that display of arrogance, and for two days now had been working on his pronunciation of c hutzpah. Did he thank the jurors for their attention, as Firestone had made a point of doing? Or did he leave it right where he was, while he had them. In his dreams, at least.

  He sat down.

  "Call your first witness, Mr. Firestone," said the judge a little too quickly, to Jaywalker's way of thinking. Had she deliberately cut short his moment of drama? Was she that smart? That worried?

  Along with everything else he did during the course of a trial, Jaywalker had a habit of asking himself an awful lot of questions.

  "The People call Hannah Weintraub."

  Jaywalker reached to the very back of a folder he'd marked Other Prosecution Witnesses. The files it contained were arranged alphabetically, so he wouldn't have to waste precious time searching for them as their names were called. Old Cousin Dorothy had been at work. A lot of prosecutors he'd tried cases against told him in advance the order of the witnesses they intended to call. Not Firestone, though. When Jaywalker had asked him for the same courtesy, Abe had responded with a sneer and a gruff "Show me where it says I gotta do that."

  What Firestone had been required to do was to turn over another carton of reports to the defense, this one containing the prior statements of his witnesses. True to form, he'd waited to the last possible moment, meaning that Jaywalker had been up half the night reading the stuff, making notes from it, and arranging it into files. Hannah Weintraub, he therefore knew, was one of three individuals who'd been driving on Route 303 shortly before the crash and had seen a red car either speeding, in the wrong lane of traffic, or both.

  Had Jaywalker been prosecuting the case, he'd decided some weeks ago, he would have started off with the witnesses from the End Zone, to show how many drinks Carter Drake had downed prior to the incident. Then he'd have followed up with an expert to translate those drinks into an estimate of Drake's blood alcohol content. That way the jurors would have had an explanation for his driving even before they heard the details of it, and would have had ample reason to be hostile toward him. Then again, they looked hostile enough as it was. Perhaps Firestone had figured as much when he'd decided to start with the driving and then backtrack to the reason for it.

  Now, as Hannah Weintraub entered the courtroom, dwarfed by a state trooper, Jaywalker got his first look at her. Shorter even than Firestone, she had to be in her seventies. And judging from the thick glasses she wore, she had to have the eyesight of an aging mole.

  This, thought Jaywalker, was going to be easy.

  FIRESTONE: Where do you reside, Mrs. Weintraub?

  WEINTRAUB: Reside?

  FIRESTONE: Live.

  WEINTRAUB: Right here in New City.

  FIRESTONE: Do you recall where you were on the eve ning of May 27, at about nine o'clock?

  WEINTRAUB: Yes, I do.

  FIRESTONE: And where were you?

  She'd been driving her friend Bessie Katz home from a mah-jongg game in Pearl River. Bessie had recently undergone a hip transplant, Hannah explained, and wasn't yet able to drive herself. A case of the blind leading the lame, thought Jaywalker, reminding himself to be gentle on cross-examination.

  FIRESTONE: And did something unusual happen?

  WEINTRAUB: I'll say.

  Jaywalker noticed a couple of tentative smiles in the jury box. Not good.

  FIRESTONE: Tell us what happened.

  WEINTRAUB: A little red car, like a sports car, zoomed past us. It had to be going about a million miles an hour.

  The smiles broadened, and there was even some muffled laughter. Not good at all.

  FIRESTONE: Did it pass you on the left, or on the right?

  WEINTRAUB: How could it pass me on the right? I was on the right.

  FIRESTONE: So it passed you on the left?

  WEINTRAUB: Right.

  That took a few minutes to sort out, but with Justice Hinkley's help, the Who's-on-first? routine was soon resolved. The red car had come up from behind them, passed them, and then stayed in the left lane, the one meant for oncoming traffic.

  FIRESTONE: Did you see what it did after it passed you?

  WEINTRAUB: Sure I saw. It kept zooming, and it stayed in the lane it didn't belong in.

  FIRESTONE: Did you lose sight of it?

  WEINTRAUB: Naturally.

  FIRESTONE: Did you ever see it again?

  WEINTRAUB: Only in a picture you showed me.

  Firestone produced a photograph and had it marked in evidence. Mrs. Weintraub identified the car depicted in it as the one that had zoomed past her. Then, with a little coaching from Firestone, she more or less pointed out on a large map the spot where she'd been on the highway when that had happened.

  On cross-examination, Jaywalker established that, even corrected, the witness's eyesight left a lot to be desired. Asked to tell him the time by looking at a clock on the rear wall of the courtroom, she was unable to.

  "But I can tell it's a clock," she said. "Just like I could tell it was a red car."

  Jaywalker smiled indulgently. But when he shot a glance over at the jury box, he saw only love. The jurors were eating up every word of Hannah's testimony. They absolutely adored her. So did he try to get her estimate of the red car's speed down from a million miles an hour to, say, a more plausible thousand? Did he ask her how fast she herself had been going when the car seemed to speed by, figuring her answer might well be in the single digits? Did he underscore the fact that Firestone hadn't even tried to have her identify the defendant as the other driver?

  "No further questions," said Jaywalker.

  Julie Napolitano took over for Firestone and called Moishe Leopold. Jaywalker had been aware of Leopold for several months. He'd discovered a one-page report in the three cartons of stuff Firestone had given him, referring to an interview way back in July. It had been one of the four gold nuggets hidden among the mud and silt. Leopold, too, had been out driving on that evening in May. He, too, had seen a red car speeding in the wrong lane. But unlike Hannah Weintraub, Leopold had been going in the opposite direction and would have been run off the road himself, had he not managed to swerve onto the shoulder.

  Not that Firestone had turned over the report so early out of the goodness of his heart, assuming he had one. No, the report constituted exculpatory material, because it contained several things that could reasonably be considered favorable to the defendant. Years ago, in a case called Brady v. Maryland, the Supreme Court had ruled that any such material had to be turned over to the defense at the earliest possible moment.

  The first of these exculpatory matters was Leopold's misidentification of the car. Not content to call it a "little red sports car" and leave it at that, as Hannah Weintraub had been willing to do, Leopold had stated with certainty that it had been a "late-model Porsche." The second mistake Leopold had made was to tell the trooper who'd interviewed him that there'd been not one but two people in the car.

  To Jaywalker's way of thinking, neither of those errors had been particularly significant, given the fact that Carter Drake was going to admit that it had been he, in his Audi, who had forced the van off the road, and that he'd been alone at the time. But of course Firestone hadn't known that back in July. Back then, he'd had to assume that the defense would make him prove who the driver of the red car had been, and prove it
beyond a reasonable doubt. And because Moishe Leopold's inaccuracies might undermine his credibility, Firestone had acted properly, for once. Even if he'd then tried to bury the evidence.

  As Firestone had with Weintraub, Julie Napolitano had Leopold recount the events of May 27. He described with some detail how he'd almost lost his life that evening. Then, on the same map Firestone had used, he pointed out the spot where he'd encountered the red car. It was almost a quarter of a mile from where the driver of the van had been considerably less fortunate. The implication was clear. The red car had stayed in the wrong lane for a considerable period of time.

  NAPOLITANO: Tell me, Mr. Leopold. Back when you first saw the car coming towards you in your lane, what did you do?

  LEOPOLD: I beeped. I flashed my lights, my high beams. But it kept coming right at me-fast.

  NAPOLITANO: Then what did you do?

  LEOPOLD: I pulled to the right, onto the shoulder. And I, I NAPOLITANO: Yes?

  LEOPOLD: And I…soiled my trousers. That's how scared I was.

  Nobody laughed at that.

  Napolitano then took the trouble to preemptively bring out the errors Leopold had made in his statement to the troopers. She even produced photos of a latemodel Porsche, red, and had them marked in evidence so that the witness could compare them with Carter Drake's Audi.

  "I see I was wrong," said Leopold. "But they sure do look similar." And even Jaywalker had to agree.

  NAPOLITANO: And when you said you thought there might have been two people in the red car…?

  LEOPOLD: I could have been wrong about that, too. As I said, it all happened very fast, and it scared the THE COURT: Yes, okay. I think we get the idea.

  Jaywalker had jotted down a dozen questions or so for Mr. Leopold. He could have played around with the misidentification of the car or the existence of a phantom passenger in it. But Julie Napolitano had already covered both of those things for him, and neither was worth overemphasizing. When it came right down to it, Jaywalker realized, Moishe Leopold was telling the truth as he knew it. No amount of cross-examination was going to get him to change his testimony or unsoil his trousers. As far as Jaywalker was concerned, the sooner he got rid of Leopold the better.