"Yes, I do," said Jaywalker, rising again as Pope resumed his seat.
So a moment of truth had arrived even earlier than Jay walker had expected, or feared. In his motion, he'd for mally requested that the case be split up into four trials. Now, as he was about to begin his oral argument in support of that position, he had a decision to make. Did he want to argue forcefully enough to persuade Davidoff, or merely well enough to protect the record, thereby allowing the judge to rule against him, and hopefully be reversed on appeal, in the event of a conviction?
"As I pointed out in my papers," Jaywalker began, "this is not one case, but four. Stacked together in this indict ment are four separate sets of criminal acts, each described in a number of counts. There are four victims, four times, and four places of occurrence." The more he spoke, the more convinced he became that he was right, that they truly needed separate trials. And without ever making a specific, conscious decision, he found himself going all out, doing his best to convince Davidoff.
"The district attorney's office," he continued, "has joined these cases into a single indictment. I have to guess that they've done that for two reasons. First, it would save us all—the D.A.'s office, the court, the defendant, and certainly me—a lot of time and effort if we have to try only one case, instead of four. Second, it's a surefire way for the prosecution to win a conviction that they otherwise might not be able to.
"Well," Jaywalker went on, "the answer to the first concern is simple. No amount of time or effort we save is justification to abridge the rights of this young man. If it takes us ten trials to insure him his rights under the Con stitution, then ten trials we must give him.
"The answer to the second concern is a bit more com plicated, but only a bit." He paused for effect. "Each of these four cases involves, if I'm correct, a single-witness identification. In separate trials, the prosecution would be barred from bringing in the other victims. The jury would be considering one attack, one victim, one issue—is Darren Kingston the man who attacked that victim? Both sides would get a fair trial.
"But in a joint trial, in spite of any instructions to the contrary that you might give them, the jury is going to apply the old 'Where there's smoke, there's fire' adage. Forgive my bluntness, but there's simply no way in hell they're going to acquit a man charged with four rapes, whatever the evidence. We might as well sentence him right now.
"Finally," Jaywalker added, "there's yet another prob lem involved here.Your Honor is going to have to instruct the jury regarding the corroboration requirement required in a rape case. That's a difficult enough matter in a onevictim case. Throw in a second victim, and you're going to have jurors impermissibly bootstrapping one victim's account with the other's. Add two more victims, and you may as well kiss the corroboration requirement goodbye."
It had been a valid argument then, even if it was one that Jaywalker wouldn't be able to make today. The leg islature has since seen fit to eliminate the requirement, and rightly so. Even Jaywalker, a defense lawyer, would admit it had been high time for the change.
"I'm afraid," he concluded, "that there's only one way we're going to be able to give this man a fair trial. And that's to give him four trials."
Pope rose as Jaywalker sat down. "Your Honor," he began, "the Criminal Procedure Law gives the court discre tion to try cases jointly where it would serve the interest of justice, and where they are similar in time, place and manner.
"In time, two of these crimes occurred an hour apart. The third occurred the following day, the fourth several weeks later. In place, all four occurred in the area known as the Castle Hill Housing Project. In manner, the four could hardly be closer. In each instance, the defendant followed his victim onto an elevator, pulled a knife, took his victim off the elevator, led her into a stairwell or onto a landing, and attempted to rape her. In two instances he succeeded, in two he failed.
"I have faith in Your Honor's ability to instruct the jury properly, and in the jury's ability to follow your instruc tions conscientiously."
With that, he sat down.
Justice Davidoff, who'd taken notes throughout the argument, continued to write in silence for several minutes. Finally he straightened up and cleared his throat. "The court," he began to read, "having heard argument of coun sel, grants the defendant's motion for a severance to the fol lowing extent—the two rapes, involving the victims Cerami and Kenarden, which occurred on the same date and only hours apart, will be tried together. The two attempted rapes, involving the victims Maldonado and Caldwell, which occurred on subsequent dates, are severed."
Jaywalker tried to cover his surprise at what he'd just heard. Already he knew this much: he didn't like it. Somehow the defense had ended up with the worst of all possible worlds. Pope would be permitted to try two of the cases at once, giving him all the edge he would need. But at the same time, holding the remaining two cases in abeyance would deprive Jaywalker of a winner-take-all trial, leaving the prosecution an insurance policy in case it failed to win the first time around. Finally, by basing his decision on the times of the incidents, Davidoff might well have come up with a rationale acceptable to an appellate court.
Jaywalker had certainly lost round one.
"So," the judge was asking, "are we ready to proceed with the Wade hearing as to the two rape victims?"
"Yes, Your Honor," said Pope.
"Yes." Jaywalker nodded weakly.
"Call your first witness, Mr. Pope."
* * *
"The People call Detective Robert Rendell."
Pope motioned to a uniformed court officer, who opened the courtroom door. A moment later, Detective Rendell entered. Jaywalker was struck by the detective's height and good looks, just as he had been upon seeing him that first day in court. He'd known then, as he knew today, that Rendell would make a compelling witness.Although right now, with no jury present, the advantage was somewhat minimized.
Rendell was sworn in by the court clerk and seated. Pope began his direct examination with a few preliminary questions about Rendell's rank, experience and assign ments in the police department. Then he moved on to August 24th, 1979.
POPE: Would you tell us what you did on that date, with respect to this investigation.
RENDELL: On August 24th I picked up three fe males, Eleanor Cerami, Joanne Kenarden, and Tania Maldonado, and drove them down to B.C.I., the Bu reau of Criminal Identification.
POPE: Where was that located?
RENDELL: In Manhattan, 400 Broome Street.
POPE: What was your purpose in going there?
RENDELL: I had an appointment with the police artist, to draw a composite.
POPE: What happened when you got there?
RENDELL: I had a one-o'clock appointment, but the artist was late. While we were waiting, I had the girls look through DD-5 files, to see if they could find someone who looked like the perpetrator, so they could show it to the artist when he came.
POPE: Could you describe the files?
RENDELL: There's a filing cabinet, with drawers full of photographs on cards, three-by-five cards, I believe.
POPE: Would you please describe for us what oc curred with Mrs. Cerami, Miss Kenarden and Mrs. Maldonado, as they were looking through these photographs.
RENDELL: They were viewing photographs of known residents of the Forty-third Precinct. They'd gone through about fifty photographs, when the three of them yelled out simultaneously that this was the man.
Jaywalker looked up from his note-taking. McCarthy had reported back to him that all three had identified photos of Darren, but none of the details. This was a devastating bit of testimony. Jaywalker listened carefully as Pope pursued it.
POPE: Did you say all three of them?
RENDELL: Yes.
POPE: Were they all looking at the photographs at the same time?
RENDELL: That's right. They were standing by the file cabinet, going through the cards. I'd pulled out the drawer of the Forty-third Precinct, and I'd asked them to look throu
gh the black male file. They were looking through it, turning the cards one by one.
POPE: Were you present while they were looking through the file?
RENDELL: Yes, I was approximately five feet away.
POPE: Would you describe what occurred at the time they called out?
RENDELL: I heard one of the girls yell out, "That's him!" And the Maldonado girl, she started walking toward the door, and Miss Kenarden, she turned to me and said, "That's the man." At that point I re moved the picture that they'd picked out, that they were on. I placed it with a series of other photo graphs, and I waited about ten minutes. Then I brought each girl into another room, individually, and I showed them the photographs. And each one made a positive identification of the photograph they'd picked out together.
POPE: And who was that photograph of?
RENDELL: Darren Kingston.
Jaywalker sat back heavily, knowing they were in deep trouble. Pope continued. He had Rendell produce the pho tograph of Darren. It was a front-and-profile mug shot, bearing a 1977 date, obviously taken at the time of Dar ren's previous arrest, back when he and Charlene had been living with his parents, in the 43rd Precinct. And although it was more than two years old, it was still a pretty good likeness.
Rendell produced the other photos he'd used. After being marked into evidence, they were placed on the defense table. Jaywalker spread them out in front of him and studied them. There were eighteen in all. All were mug shots of young black males; some even resembled Darren rather closely. Rendell had been fair in his selection. As Jaywalker looked at them, he could see that Pope was watching him, waiting for his reaction. Jaywalker did his best to avoid looking dejected, but it was hard. The simul taneous emotional responses of the victims, the certainty of their exclamations, the fairness of the other photos, and the success of all three victims in picking out Darren's photo from the others—all those elements, when com bined, spelled absolute disaster for the defense. Not just at the Wade hearing, which Jaywalker had never had illu sions of winning, but at the trial itself.
Pope continued with his direct examination of Rendell, but the remainder was anticlimactic. The damage had been done. When Pope was finished, Justice Davidoff turned toward Jaywalker.
"Cross-examination?"
"Yes, Your Honor."
But Jaywalker had little to ask the detective. He estab lished that there had never been an actual corporeal lineup, just the photo array. He got Rendell to be more specific regarding who had said what upon first seeing Darren's photo. He questioned him about certain details in his reports. After twenty minutes or so, he let the detective off the stand, before Justice Davidoff began to show annoy ance. He knew he would have to save the judge's patience for the two victims, whose testimony he needed far more than the detective's.
They broke at one o'clock. Jaywalker politely declined the Kingstons' invitation to join them at lunch. He never ate breakfast, and whenever he was on trial he worked straight through the recess, fueled by adrenaline in place of food. It was a diet not to be recommended to the general public. Good for eliminating five pounds a week, it was also guaranteed to bring its share of blinding headaches.
As he reviewed his list of questions for the victims, it occurred to Jaywalker that much of the responsibility for Darren's arrest was Jaywalker's own. Following the dis missal of the 1977 case, Darren's record was supposed to have been sealed, and all the photographs and fingerprint cards the police had of him should have been destroyed. Jaywalker had dutifully sent off a letter to the NYPD, in cluding with it a copy of the disposition slip. But he'd never followed up on it, never checked to see if in fact the files had been purged. Now it was clear that they hadn't been.
Today the system is self-activated and far more effi cient. Back then, it was hit or miss. The truth was, though, that he wouldn't even have known how to go about check ing up on something like that. What could he have done, gone to the local precinct house and asked them to go through all their mug-shot files? They would have thrown him out on his ear, or worse. But none of that stopped him from feeling that had he been more thorough, Darren's photo wouldn't have been there, waiting for someone to pick it out.
After the break, Pope called Eleanor Cerami to the stand. She'd been the first of the victims to be attacked. She was a small white woman who spoke timidly and was obviously frightened. Pope had her describe the incident, bringing out the fact that she'd been with her attacker for somewhere between fifteen and twenty minutes, certainly long enough to get a good look at him. Then he shifted to the day at the precinct, eliciting her version of the excite ment that had occurred when the three young women had first spotted the photo of Darren. He concluded by asking her if she now saw the man in the courtroom. She nodded and pointed directly at Darren. Jaywalker had the distinct impression that as much as anything else, Pope was running her through a dress rehearsal for the trial. In response to his final question, she said there was no doubt in her mind.
Jaywalker began his cross-examination as gently as he could. He wanted Mrs. Cerami to relax a bit, if possible, to trust him, to treat the proceeding as a search for the facts, rather than a contest between lawyer and witness. He also didn't want to give Justice Davidoff cause to step in and protect her.
He got her to admit that at first she'd paid no particu lar attention to the man who'd gotten onto the elevator after she had. He was black, but so were lots of the project resi dents. It had only been when he suddenly displayed the knife that she'd taken real notice of him. Even then, her attention had been divided between the man himself and the knife. And when he'd marched her off the elevator, he'd been alongside her, rather than facing her.
Jaywalker began to feel he was doing all right. He had Mrs. Cerami describe the unscrewing of the overhead lightbulb and the sex acts themselves. Then he decided to go for broke. After all, there was no jury present, and he needed to know.
JAYWALKER: Now, would it be fair to say that you did your best to look away from him?
CERAMI: I was looking at his face.
Jaywalker winced. So much for his clever question. Still, it was better to hear the bad news now than to bring it out in front of a jury. He asked Mrs. Cerami about the lighting, once the man had unscrewed the lightbulb. She said it had still been pretty good. Jaywalker winced again. He pushed on, questioning her in detail about the oppor tunity she'd had to see the man and the description of him she'd later given to the police. He concluded by bringing out that, according to her recollection, there had been nothing unusual about her attacker in the way of scars, marks, deformities or speech mannerisms. Then he thanked her and sat down.
Next Pope called Joanne Kenarden. Jaywalker recog nized her from Darren's first court appearance, back in September. He was struck again by her hardness, particu larly in contrast to the timidity of Eleanor Cerami. Pope asked her about the day of the incident. She answered each of his questions directly, without hesitation. He got to the moment of the sex acts.
POPE: What did he do at that point?
KENARDEN: He made me commit oral sodomy, and he raped me.
Pope continued, bringing out the fact that she'd spent about twenty minutes with her assailant, during which time she'd had ample opportunity to observe and remember him.
On cross-examination, Jaywalker questioned Miss Kenarden in detail about everything that had taken place. She, too, said that her attacker had spoken at some length. Jaywalker brought out as much of the actual conversation as he could. He was mindful of the fact that she was the only one of the four victims John McCarthy had been unable to interview. He needed her answer on the question of whether the man who'd raped her had spoken with a stutter.
JAYWALKER: Now, other than the description you gave Detective Rendell, is there anything else you can now recall telling him about the man?
KENARDEN: No, other than he, you know, spoke softly.
JAYWALKER: Did you tell Rendell that?
KENARDEN: Yes.
JAYWALKER: Anything else?<
br />
KENARDEN: He spoke evenly, not abusively. He spoke to me a lot.
JAYWALKER: Anything unusual about his speech?
KENARDEN: No.
Jaywalker exhaled. This was good stuff, but he wanted more. In addition to his stutter, Darren had a chipped front tooth, and a small scar that interrupted one of his eye brows.
JAYWALKER: Did your attacker have any scars that you noticed?
KENARDEN: No.
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