And then, a week before the trial was scheduled to begin, Daniel Pulaski phoned. “Well,” he told Jaywalker, “you lucked out.”
“Oh? How’s that?”
“I’ve been promoted to the Investigations Division,” he said. “I’m going to have to reassign almost all of my trial cases.”
“Congratulations,” said Jaywalker. “But why not keep this one?” By that time he’d convinced himself that as much as he disliked Pulaski, the man’s sarcasm and sneakiness could actually end up working to the defense’s advantage. What better way to highlight Alonzo Barnett’s likableness, after all, than to pit him against a slimeball, a thoroughly unlikable cross-examiner?
“Don’t take offense,” said Pulaski, immediately ensuring that Jaywalker would. “But from the People’s point of view, this case pretty much tries itself, even with you at the defense table. Anyway, it’s not like I’m handing it off to some loser. I’m giving it to a rising young star in the office.”
“And who might that be?”
Pulaski had asked if he happened to know Mickey Shaughnessey.
“Never heard the name,” confessed Jaywalker.
“Well, you will,” Pulaski assured him. “You and the rest of the do-gooders on the defense side. I’m only sorry I won’t be there to watch the sparks fly.”
“A street fighter, huh?”
“You might say that.” Pulaski laughed. “Well, you two have fun.” Followed by a click.
So the slimeball had been replaced by a brawler. Fair enough, Jaywalker decided. Alonzo Barnett’s thoughtful, quiet intelligence might come off even better against a red-faced, two-fisted Irishman.
Although it was far from the top of his list of favorite things to do, Jaywalker spent the next day hitting the books. He wanted to check out a seldom-used defense called agency. At least that was its short name, sort of how Jaywalker was short for Harrison J. Walker. Technically termed “agent of the buyer,” it went something like this.
A drug deal often involves more than just two people. There are the hand-to-hand participants, the seller and the buyer. But frequently there’s a cast of supporting characters. There can be a broker, the guy who puts the seller and buyer together, and in that respect acts not all that differently from a real estate broker. There can be a middleman, somebody who positions himself between the seller and the buyer. For a piece of the action, whether that turns out to be cash, drugs or both, he serves to insulate the principals from each other, lest one be looking to either rip off or arrest the other. Then there’s the connection, the seller’s immediate source of supply, and his connection, on up the ladder. There may be a moneyman, separate and distinct from the seller. There may be a stash man, who sits on the drugs, a re-up man to replenish the supply, a lookout to watch out for the Man and even a gofer or two.
Under the law of “acting in concert,” all these individuals are equally guilty of participating in the sale. With one exception, of course, and that’s the buyer. Not even the vast breadth of the acting-in-concert law can ignore the fact that since he’s the one who’s purchasing the drugs, the buyer can’t at the same time be selling them.
From that necessary distinction has grown an arcane and almost unheard of defense. Borrowing from the principles of contract law, some clever defense lawyer postulated years back that if someone aids a transaction by helping the buyer rather than the seller, it follows that he can be no more guilty of sale than the buyer is. Take, for example, a buyer who speaks only English, who’s going to purchase drugs from a seller known to speak only Spanish. To protect himself from being overcharged or short-weighted, the buyer enlists a bilingual friend to come along and act as an interpreter, either as a favor or for a fee. The friend’s only role is to translate for the buyer; he’s never even met the seller. In theory, the friend, should he be arrested, can argue that he acted solely as the agent of the buyer and therefore can’t be convicted of sale. Criminal facilitation, perhaps, for having assisted in the overall transaction, but not sale. And while Alonzo Barnett was facing multiple counts of sale, nowhere in the indictment was there a count charging him with criminal facilitation, an oversight that left Jaywalker free to argue that his client had merely been acting as an agent for the buyer.
In theory, at least.
In practice, it never seemed to work out that way. Despite spending an entire day searching the case law, Jaywalker was unable to find a single case where a defendant had actually been acquitted on agency, or a single instance where a judge had been reversed for refusing to instruct the jury on the defense.
Still, he tucked the idea away in the back of his head, in a subfile he labeled Hail Mary Plays.
The following day Jaywalker got a call from the red-faced, two-fisted Irishman who’d be taking over the case from Daniel Pulaski.
“Hi,” she said, sounding neither red-faced, two-fisted, nor even particularly Irish, for that matter. “My name’s Miki Shaughnessey, and I’m the new assistant on the Alonzo Barnett case.”
Jaywalker found himself momentarily speechless.
“Are you there?” he heard her asking.
“Yes, I’m here. It’s just that I was expecting someone more…more-never mind.”
“I’ve got some lab reports for you,” said Shaughnessey. “I can send them out to you, if you like. Or you can stop by and pick them up.”
He was at her 8 °Centre Street office twenty minutes later. Miki Shaughnessey was as different as could be from what he’d expected, right down to the spelling of her first name, which Jaywalker read off a piece of paper taped to her door, the permanent plaque having not yet arrived. She was also as different as could be from Daniel Pulaski. And not just because she was strawberry blonde, petite and cute. While those things made her good to look at, this was 1986. Jaywalker’s wife was very much alive back then, and he was very much in love with her. It would only be after her death that he would look elsewhere for consolation, first to the confines of his bed, then to the bottle, and eventually to other members of the female persuasion.
No, the reason Miki Shaughnessey was an improvement over Daniel Pulaski had less to do with her looks than it did with her openness. Jaywalker had sensed as much from the moment of her initial phone call. Pulaski would have held on to the lab reports for as long as possible. Hell, he’d done just that for twenty months so far. Then, at the last possible moment, he’d have sent them to Jaywalker by Third Class Mail. Shaughnessey had not only called him to say she had them, but had actually invited him to come over to pick them up. And while part of Jaywalker would miss doing battle against the likes of Pulaski, right now he’d settle for Shaughnessey’s openness.
“So,” she was telling him now, “I understand that I’m about to go up against one of the best.”
“Don’t believe everything you hear.” He brushed her off with characteristic modesty. “And you must be good, or Pulaski wouldn’t have picked you to try this case. I hear he’s a big shot over in Investigations now.”
“Not yet. His transfer doesn’t actually take place for another six weeks. And while I appreciate his vote of confidence in me, I feel like I’m being thrown to the wolves. Not only does he give me an A-1 felony for my first trial here, he puts me up against you.”
“Don’t worry,” Jaywalker told her. “I’m sure you’ll do just fine.” And it was true, he knew. Because while he would have pulled no punches against a prick like Pulaski, he’d never take advantage of a novice. Sure, once the opening bell rang, he’d do everything he could for Alonzo Barnett, but that everything wouldn’t include playing dirty. And he knew that Shirley Levine would go out of her way to make Shaughnessey’s first trial a fair one, too.
But even as he was telling Miki Shaughnessey not to worry, Jaywalker had already begun to. Because tucked into her little speech were several things that immediately raised red flags for him. First was the revelation that Daniel Pulaski’s transfer wouldn’t take place for another six weeks. The Barnett trial was only two weeks away an
d would last two weeks at most. Had Pulaski wanted to, he could easily have tried it himself before going over to Investigations. Then there was the fact that Miki Shaughnessey was being entrusted with an A-1 felony as her very first trial in the office. Sure, it was a winner from the prosecution’s point of view. But still, it was kind of like handing a brand-new assistant a murder case first time up to the plate. Why would Pulaski take a chance doing something like that, especially when he himself knew the case inside out? Why not let Shaughnessey second-seat him and learn by watching how it was done? Or, if he really wanted to give her some on-the-job training, have her try it with him in the second seat?
Why was Pulaski bailing out?
And what was he himself missing?
Don’t be paranoid, Jaywalker told himself. But it was hard for him to take his own advice. Paranoia wasn’t exactly a prerequisite for being a good defense lawyer, but it sure came in handy from time to time.
They talked for another twenty minutes. Jaywalker assured Shaughnessey that he wouldn’t oppose an adjournment of the trial if she felt she needed one. She agreed to let him know what witnesses she intended to call, along with the order in which she planned on calling them, as soon as she figured those things out. “So why is your guy going to trial?” she asked at one point. “I mean…” Her voice trailed off, leaving the obvious unsaid, that it seemed futile on the defendant’s part, futile and self-destructive.
Jaywalker answered her with a shrug. “It happens,” he said.
She nodded as though she understood. She might be inexperienced, Jaywalker decided, but she seemed like a quick learner and a straight shooter. Shirley Levine was a good judge and Alonzo Barnett a nice man. Together they would have a good trial, the four of them. And when it was over, Barnett would shake Jaywalker’s hand, thank him for doing his best, and go off someplace upstate to spend the rest of his life sitting in a cage. For doing a guy a favor. All so a bunch of politicians up in Albany could outshout each other over which of them was toughest on crime.
Even back as early as 1986, Jaywalker knew he could keep doing this work only so long before it would drive him totally nuts, before it would send him rummaging through the bottom of his closet and digging out his gun from his DEA days. Before it would make him want to blow away the sheer insanity of these stupid drug cases, for once and for all.
7
The anonymous caller
“Alonzo Barnett is sitting here at the defense table today for one reason, and one reason only,” Jaywalker told the jury. “And that’s because against his own self-interest and at his own peril, he did what he thought was the right thing to do. He returned a favor. He repaid a debt. In Alonzo Barnett’s eyes, another man had quite literally saved his life several years earlier. And when that man came calling and begging for help, Mr. Barnett at first said no, he couldn’t help him. He said that over and over again, in fact. He said it on six different occasions. Until the other man put it a different way. ‘You owe me,’ is how he put it. And as Mr. Barnett thought about it, he realized that the other man was right, that Mr. Barnett did in fact owe him. So he relented, and he did the favor. And because he did the favor, he was arrested and charged with a series of very serious crimes.
“That’s why he sits here today. And that’s why you sit where you sit today, to render judgment on what Mr. Barnett did almost twenty-one months ago.”
It was one of the shortest opening statements Jaywalker had ever made or, for that matter, would ever make. It was shorter than Shirley Levine’s preliminary explanation of the rules that govern criminal trials, shorter by almost ten minutes than Miki Shaughnessey’s opening, shorter by a full two days than the time it had taken them to pick a jury of twelve regular jurors and four alternates.
Because there was simply nothing else for Jaywalker to say. He couldn’t talk about entrapment, because Clarence Hightower hadn’t been an informer working for law enforcement. He couldn’t talk about agency, because if you were to really analyze Barnett’s role in the transactions, the principal he’d been working for had been Hightower. And Hightower had wanted to obtain drugs in order to sell them to a buyer. A buyer who’d turned out to be an undercover agent.
“Call your first witness,” Judge Levine told Miki Shaughnessey.
Jaywalker reached across the defense table and retrieved a subfile marked Pascarella. True to her word, days earlier Shaughnessey had told him the names of the witnesses she was going to call and the order in which she expected to do so. His initial impression of her had been borne out by everything that had happened since. Where Daniel Pulaski had been two-faced and closefisted at every turn of events, Shaughnessey was open, honest and aboveboard. If she truly represented the next generation of prosecutors at Special Narcotics, the office would soon be rivaling the New York County District Attorney’s in terms of the integrity of its staff. Furthermore, over the past two days Shaughnessey had demonstrated that she was more than just a pretty face. Despite her inexperience, she’d held her own during jury selection, displaying a quick wit and a level of comfort that a lot of seasoned lawyers never achieve. For two full days she’d matched Jaywalker challenge for challenge as they whittled an initial pool of a hundred and twenty jurors down to a final sixteen. If the jurors seemed to like Jaywalker and his client-and he always made it his business to see that they did-they seemed to like Miki Shaughnessey every bit as much.
The jury they ended up with struck Jaywalker as a pretty middle-of-the-road group, neither lockstep pro-prosecution nor bleeding-heart pro-defense. Which, as far as he was concerned, meant that he’d already lost round one. A fair and unbiased jury was great if you happened to have the facts and the law on your side. If you didn’t, those same qualities were likely to work against you.
“The People,” Shaughnessey said now, “call Lieutenant Dino Pascarella.”
Direct sale trials, Jaywalker knew from experience, follow a very predictable pattern. The prosecution usually begins with a team leader who supervised the cops or agents in the field. Then comes the undercover officer, explaining when, where and how he bought the drugs, and who he bought them from. After that, a member or two from the backup team describes the corroborating surveillance they conducted during the buy or buys, and the eventual arrest of the seller or sellers.
Even had Miki Shaughnessey not laid out the structure of her case to Jaywalker in advance, the “Lieutenant” that preceded Dino Pascarella’s name would have been enough of a hint that in this particular operation, he’d been the team leader. Entering the courtroom now through a side door, Pascarella made his way to the witness stand with practiced self-assurance. He was a dark-haired man who looked to be in his late thirties, dressed in what might have passed as a conservative blue business suit, had it not been just a bit on the shiny side.
Shaughnessey began by establishing her witness’s twelve years of experience, first as a New York City police officer, then a detective, and for the past two years as a lieutenant in narcotics. The present case, he estimated, was the five hundredth he’d worked on, and perhaps the twentieth he himself had supervised.
SHAUGHNESSEY: Did there come a time, Lieutenant, back in September of 1984, when you had a telephone conversation with a civilian?
PASCARELLA: Yes, there did.
SHAUGHNESSEY: And as a result of that conversation-
JAYWALKER: Objection.
Because the content of the conversation was hearsay and therefore inadmissible, the phrase “as a result of” improperly asked the jurors to infer the nature of the conversation. Not that they wouldn’t anyway, Jaywalker knew. But he wanted to see how Miki Shaughnessey reacted to being thrown off her rhythm. Unfortunately, Judge Levine, even while sustaining Jaywalker’s objection, proceded to coach Shaughnessey on how to cure the defect.
THE COURT: Yes, sustained. The proper way to phrase the question, Miss Shaughnessey, is “Following that conversation…”
SHAUGHNESSEY: I’m sorry. Following that telephone conversation, did you d
o something?
PASCARELLA: Yes, I did.
SHAUGHNESSEY: Please tell us what you did.
With that open-ended invitation, Lieutenant Pascarella proceeded to recount how he’d opened an investigation under the authority of the Joint City, State and Federal Task Force into the suspected drug dealings of a subject known up to that point only as John Doe “Gramps.”
SHAUGHNESSEY: Why John Doe “Gramps”?
PASCARELLA: The “John Doe” was because we didn’t know his real name yet. The “Gramps” was because he was an older gentleman who’d been seen with a couple of children, both girls, who we assumed were his granddaughters.
SHAUGHNESSEY: Did you later learn that your assumption was incorrect?
PASCARELLA: Yes. We found out at some point that they were actually his daughters.
The investigation had begun with surveillance of “Gramps.” A total of eleven men and one woman had participated. In short order, according to Lieutenant Pascarella, members of the task force succeeded in “taking the subject home.”
SHAUGHNESSEY: What do you mean by that?
PASCARELLA: I mean we established where he was living, at 562 St. Nicholas Avenue. That in turn allowed us to check telephone listings and utility records. And although it turned out the subject had no phone, we were able to identify him through Con Edison records.
SHAUGHNESSEY: Did you learn his true name?
PASCARELLA: Yes, we learned that his name was Alonzo Barnett. From that we were able to obtain a photograph of him from NYPD files.
Which normally would have had Jaywalker on his feet objecting and even moving for a mistrial. To anyone with half a brain, implicit in the witness’s answer was the fact that the defendant had a prior record, something the prosecution is normally prohibited from revealing, unless and until the defendant takes the stand.
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