JAYWALKER: Pascarella?
BUCKNELL: Right. He told me to be very careful, that Mr. Barnett was a high-value target. And he didn’t want me to blow it by being too aggressive inside the building.
JAYWALKER: And you took that to mean “Don’t try too hard to identify which apartment he’s going to.” Right?
BUCKNELL: In a way. I suppose so.
JAYWALKER: Well, that’s exactly what it sounded like. Didn’t it?
Miki Shaughnessey’s objection was sustained, but not before the witness had already nodded his head and begun to agree.
The problem was, where did you go from there? Did you attack Lance Bucknell, accuse him of making up the business about having been up on the twelfth floor? In television and movie portrayals, witnesses were always breaking down and admitting they’d been lying. In real life, Jaywalker knew, that almost never happened. No matter how hard he went after Bucknell, the guy wasn’t going to fold. He couldn’t very well suddenly reverse course and say, “Oh, yeah, I lied about that.” To do so would cost him not only his job but several years of prison time for perjury. Besides, Jaywalker had nothing to go after him with. It wasn’t like he had a videotape of what had gone on inside the building. He’d already checked, and while there was a security camera, it was nothing but a dummy. All he had was his own client’s whisper in his ear that almost two years ago he’d gone to the eighth floor and not the twelfth. And while Jaywalker believed the whisper, it simply wasn’t enough to go on. Bucknell would duck and parry whatever Jaywalker could throw at him, and in the end, the jury would believe him and feel sorry for him, not to mention regard Jaywalker as a bully and take it out on his client.
So he thanked Investigator Bucknell and sat down.
It was only four-thirty, but up at the bench Miki Shaughnessey explained that she had only one remaining witness, the chemist, who was testifying in federal court and wouldn’t be available until the following morning. “I have another member of the backup team here,” she said, “but I’ve decided against calling him. I think his testimony would be nothing but cumulative.”
“Who is he?” Jaywalker asked. Cumulative was a funny word, he knew. It was supposed to mean that the witness wouldn’t really add anything new to the testimony. What it really meant, Jaywalker had learned over the years, was that the prosecutor didn’t want to call the witness because he might remember things differently from the way previous witnesses had remembered them.
“Detective Lopata,” said Shaughnessey.
“Give me a minute?” Jaywalker asked the judge. When she nodded, he went back to the defense table and found a file he had for Lopata. He pretty much knew the contents by heart but wanted to double-check, just in case he wanted the detective kept on call as a possible defense witness. But from scanning the reports, Jaywalker could see that Lopata’s testimony would indeed add nothing new. He’d counted out and photocopied the official advance funds, weighed the drugs and performed a few other administrative tasks. But in terms of surveillance, he’d stayed back in one of the cars during each buy and had seen nothing of interest.
So it didn’t look like Shaughnessey was trying to hide anything by deciding not to call him. If anything, it showed she was confident that her case was solid without him. And even Jaywalker would have had to agree. Three witnesses down and one to go, and he’d barely made a dent so far. And with the remaining witness being the chemist, what hope did he have? That he was going to be able to somehow show that it hadn’t been heroin at all that his client had sold, but baby powder?
Back up at the bench, Jaywalker told Shaughnessey that she could let Lopata go. Without a good reason for doing so, he wasn’t about to put some detective on the stand without ever having spoken to the guy. The upside was negligible, while the potential for getting clobbered was virtually unlimited.
But having only one prosecution witness remaining created something of a logistical problem for Jaywalker. As ready as he was to put Alonzo Barnett on the stand, he didn’t want to begin with him on a Friday afternoon, only to have his testimony broken up by the weekend. Worse yet, doing so would give Miki Shaughnessey two full days to refine her cross-examination.
“I’m afraid I won’t be prepared to go forward with the defense case until Monday morning,” he said.
The judge shot him a look. In all the years she’d dealt with Jaywalker, he’d never once been unprepared to do anything. Overprepared? Yes. Absurdly overprepared? To a fault. Like the time he’d convinced her he was fluent in Swahili because he’d corrected an interpreter’s translation of a witness’s answer. All he’d done, of course, had been to memorize what the witness had said at an earlier hearing in response to the identical question. But the word had quickly gotten around the courthouse that Jaywalker wasn’t to be fooled, not in English, Spanish, French, Italian, German, Hebrew, Yiddish, Creole, Patois, Hindi, Farsi, Mandarin, or any of a dozen other languages and dialects. While it was as far from the truth as it could have been, Jaywalker wasn’t about to deny the rumor.
“Monday it shall be,” said the judge, evidently knowing that, were she to push Jaywalker to begin earlier, he’d no doubt come down with a migraine, set off a fire alarm or pull some other stunt to get what he wanted. So she turned to the jurors and told them they’d be working only a half day on Friday.
From their reactions, you would have thought they’d been given a reprieve from a death sentence.
That night, long after his wife had kissed him goodnight and headed to bed, Jaywalker pored over his file on the chemist. Very few defense lawyers insisted that the chemist be brought in to testify. The vast majority were more than willing to concede that the drugs were heroin or cocaine or angel dust, or whatever the lab report said they were. Indeed, Jaywalker himself often stipulated to the same thing, especially in cases where he had a viable defense of some sort to focus on. But in this case he had no defense, viable or otherwise. So whether out of mounting frustration or mere stubbornness, he’d told Miki Shaughnessey some time ago that he wanted the chemist brought in to testify.
“Why?” she’d asked, the surprise evident in her raised eyebrows.
“Because,” was all the answer he’d been able to give her.
Now, as he reviewed and re-reviewed lab reports he’d already reviewed a dozen times before, he tried his hardest to find a legitimate reason that, at least in hindsight, might justify his refusal to stipulate as something other than mere childish petulance.
It took him until nearly three o’clock in the morning to find one, but he did. The problem was that by that time he was so exhausted that he had no way of knowing whether it was a meaningful point or not. He finally fell asleep, but not before wondering if all those other defense lawyers didn’t have the right idea. Instead of driving themselves relentlessly over every little thing, they conserved their energy so they’d be ready to recognize a real opportunity if one came along, then pounce on it. Jaywalker was too tired to recognize anything anymore, let alone pounce on it.
11
Chemistry lessons
Miki Shaughnessey’s direct examination of the chemist was as basic as it could be. The previous afternoon she’d asked Jaywalker what he hoped to accomplish with the witness, and Jaywalker had answered that he honestly had no idea. It had been a truthful response at the time he’d made it. Shaughnessey had then volunteered that she’d checked and found that most of her colleagues had never once had to call a chemist at trial, having relied each time upon the defense lawyer’s willingness to stipulate as to what the chemist would have said if put on the witness stand.
“Don’t worry about it,” Jaywalker had told her. “I’m just frustrated with your cops and agents. I want the jurors to hear what a truthful witness sounds like.”
“You don’t believe the cops have been truthful?”
“About the basics, sure. But,” he’d added, “not about some of the little things. Though I’m honestly not sure why.”
“What kind of little things?” she’
d wanted to know.
Either she’d been genuinely curious about why her witnesses might have done a bit of fudging here or there, or she’d been looking to gain a tactical advantage from whatever Jaywalker might tell her. But she was young and cute, and Jaywalker, though happily married, had always been a sucker for the combination. So he’d decided to give her the benefit of the doubt.
“Oh, the business about the anonymous caller,” he’d started with. “That just doesn’t ring true. My client wasn’t dealing out in the open on his stoop. In fact, he wasn’t dealing at all until Clarence Hightower came along and twisted his arm. Next, the fact that Hightower was never charged with sale, even though he introduced St. James to Barnett for the express purpose of buying drugs. Finally, the fact that no real attempt was ever made to get to Barnett’s connection. That should have been the ultimate goal of the operation. Instead they send some overgrown Boy Scout to do the job, and then tie his hands to make sure he doesn’t find out anything.”
“So what does all that have to do with the chemist?” Shaughnessey had asked.
“Nothing,” Jaywalker had admitted. “Like I said, I’m frustrated, and I don’t know what else to do.”
That had been then.
Now it was Friday morning, and Miki Shaughnessey rose to announce that the People were prepared to call their fourth and final witness, Olga Kasmirov.
Just as not all doctors are lucky enough to be on staff at the Mayo Clinic or the National Institutes of Health, so too are there chemists in this world who don’t pull down fat six-figure salaries at DuPont or Eli Lily. Scan down the rolls of the psychiatrists who perform the half hour court-ordered evaluations for the criminal justice system, or the technicians who spend their days peering through old-fashioned microscopes at drugs bought or seized on the streets of the city, and in no time you’ll think you’ve stumbled upon a veritable roster of United Nations delegates. Except that the pay isn’t nearly as good.
So the name Olga Kasmirov barely registered on Jaywalker’s radar, any more than did her explanation two minutes into her testimony that while she’d once been a leading expert in polymer conductivity in the former Soviet Union, these days she made her living analyzing samples of white powder or green vegetation at the New York City office of the United States Chemist.
Shaughnessey’s direct examination was just that-direct and to the point. She spent a few minutes asking the witness about her education and experience, but she needn’t have bothered; Jaywalker quickly rose and offered to stipulate that the witness qualified as an expert in the analysis of controlled substances. Thanking Jaywalker for the concession, Shaughnessey moved on to the drugs bought and seized from Alonzo Barnett.
SHAUGHNESSEY: With respect to the substance from the first buy, what did you do?
KASMIROV: I emptied the powder onto a scale and determined its net weight to be 1.01 grams. We use the metric system. That comes out to about one twenty-eighth of an ounce. Then I conducted several tests for the presence of heroin hydrochloride, and the results were consistently and conclusively positive.
SHAUGHNESSEY: How about with respect to the second buy?
KASMIROV: For the second buy, I found the weight to be 26.02 grams. That’s a little less than one ounce. As before, tests for the presence of heroin hydrochloride proved positive.
SHAUGHNESSEY: And the package seized from the defendant at the time of his arrest?
KASMIROV: I found the weight to be 124.8 grams. That’s just under an eighth of a kilogram, or about 4.4 ounces. Once again, I tested for the presence of heroin hydrochloride and the results were positive.
SHAUGHNESSEY: Now, these lab reports you prepared. Were they prepared in the ordinary course of business at the lab?
Jaywalker knew the ritual, the legalese required to admit business records as an exception to the hearsay rule. The next question would be, “And was it the ordinary course of business at the lab to prepare such reports?” He rose to his feet and magnanimously stated that he had no objection to the reports being received in evidence.
The fact was, he actually wanted them in.
He needed them in.
“Received in evidence,” said the judge.
Miki Shaughnessey thanked her witness and sat down. Her entire direct examination had taken less than fourteen minutes.
Jaywalker’s cross would take considerably longer.
JAYWALKER: Good morning. Is it Ms. Kasmirov, or Dr. Kasmirov?
KASMIROV: In the Soviet Union I was Dr. Kasmirov. Here I’m not sure how it works.
JAYWALKER: But you won’t object if I call you Doctor?
KASMIROV: I won’t object.
JAYWALKER: Good. Dr. Kasmirov, in response to Ms. Shaughnessey’s questions, you essentially described performing both a quantitative analysis of the drugs you examined in connection with this case and a qualitative analysis. Correct?
KASMIROV: That is correct.
JAYWALKER: In other words, how much the substances weighed and what they contained.
KASMIROV: Correct.
JAYWALKER: Let’s talk about the weights first, okay?
KASMIROV: Okay.
JAYWALKER: Starting with the first buy. You found that its net weight was 1.01 grams. Can you tell us how close that was to weighing exactly one gram?
KASMIROV: It was off by only one one-hundredth of a gram. In other words, if it was supposed to be a gram, it was off by about one percentage point.
JAYWALKER: And skipping to the third quantity of drugs you analyzed. That you found to weigh 124.8 grams. If that was supposed to be an eighth of a kilogram, how close was it?
KASMIROV: Well, a kilogram is a thousand grams. An eighth of that would be 125 grams. So 124.8 would be off by only two-tenths of a gram. I would need a calculator or paper and pencil to compute the margin of error.
JAYWALKER: Here. [Hands calculator to witness]
KASMIROV: It comes out to.00016, or sixteen-thousandths. That’s a small fraction of one percentage point.
JAYWALKER: In other words, very, very close.
KASMIROV: Yes.
JAYWALKER: So close as to suggest that whoever had measured it out used a very sophisticated scale. Would you agree?
KASMIROV: I would agree, yes.
JAYWALKER: Now let’s go back to the one we skipped, the second buy. There you found the net weight to be 25.8 grams. Correct?
KASMIROV: Correct.
JAYWALKER: Assume for a moment that that buy was supposed to have been one ounce. Can you tell us how close it actually was?
KASMIROV: Well, an ounce contains 28.35 grams, rounded off to two decimal points. The difference would have been 2.55 grams.
JAYWALKER: In other words it was more than two and a half grams short?
KASMIROV: Yes.
JAYWALKER: And the margin of error?
KASMIROV: May I use the calculator?
JAYWALKER: Of course.
KASMIROV: More than nine percent off, almost ten.
JAYWALKER: Where did it all go?
KASMIROV: Some might have been lost during field-testing.
JAYWALKER: But only a tiny bit, right?
KASMIROV: I should think so.
JAYWALKER: And if the first and third batches were field-tested, as well, they appear to have lost almost nothing in the process. Agreed?
KASMIROV: I agree.
JAYWALKER: So where did those two and half grams-almost ten percent of an ounce-go?
KASMIROV: I can’t tell you.
Jaywalker walked back to the defense table and dug out a file. Although dug out was only what it looked like. The truth was, he’d had the file right where he could find it since three o’clock that morning. Now he drew two sheets of paper from it. One he handed to Miki Shaughnessey. The other, the original, he gave to the court reporter, asking that it be marked Defendant’s Exhibit A for identification.
JAYWALKER: Dr. Kasmirov, I hand you this item and ask you to take a look at it.
KASMIROV: [Complies]
JAYWALKER: Have you seen it before?
KASMIROV: No, I don’t believe so.
JAYWALKER: Are you able to tell us what it is?
KASMIROV: Yes. It’s a lab report prepared by someone at the police department’s lab. It describes an analysis of drugs recovered from a man named Clarence Hightower, also known as “Stump,” at the time of his arrest.
JAYWALKER: I offer it in evidence.
Now by rights Miki Shaughnessey could have objected. For one thing, it was hearsay, since Jaywalker hadn’t subpoenaed anyone from the lab to authenticate it as a business record. There simply hadn’t been time for him to do it the right way. Beyond that, its relevance was far from clear.
But one of the things that happens when the defense allows the prosecution to do things without objection is that the prosecutor-particularly a young and inexperienced prosecutor-feels compelled to match that display of goodwill. Jaywalker was betting that the last thing Shaughnessey wanted to do was seem threatened by a piece of paper. She had a winner of a case, an open-and-shut conviction. Would she dare jeopardize that by being perceived as fighting to keep evidence out of the trial?
SHAUGHNESSEY: No objection.
THE COURT: Received as Defendant’s A.
JAYWALKER: Thank you. What does this lab report tell you, Dr. Kasmirov?
KASMIROV: It tells me that what was recovered from Mr. Hightower had a net weight of one-eleventh of an ounce plus 4.6 grains. They use avoirdupois weight over there.
JAYWALKER: And the metric equivalent?
KASMIROV: [Using calculator] Let me see. It comes out to just about two and a half grams. Aha!
If any of the jurors had missed the significance, there was Olga Kasmirov’s spontaneous “Aha!” to highlight it for them. Was it just a coincidence that Clarence Hightower had ended up with the exact amount of heroin in his pocket that had mysteriously disappeared from the ounce Agent St. James had received from Alonzo Barnett on the second buy?
But Jaywalker was only halfway there.
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