Jaywalker paused for a moment. He liked leaving things for the jurors themselves to figure out. But this one was too important to leave up in the air. Dropping his voice so low that they had to lean forward to hear him, he posed the question that lay at the very heart of the case. "Where," he asked them, "was Darren Kingston at nine-thirty in the morning on Monday, September seventeenth? It turns out he was at the United States Post Office, Gracie Station, on East Eighty-fifth Street, in Manhattan. Miles away. Hours away.
"Once again, you don't have to take Darren's word for it, although by now you should. But you can take Delroid Kingston's word. You can take Andrew Emmons's word. You can take George Riley's word. You can take P. G. Hamilton's word. And if none of that's good enough for you, you can read the fact from an official United States Post Office document. It's in evidence. And it proves ex actly where Darren Kingston was at the moment Eleanor Cerami was watching her rapist walk through her lobby."
Jaywalker reminded the jury that, as defense counsel, he didn't have to prove or disprove anything. That was the job of the prosecution. Yet with that document, and all the circumstances surrounding it, he'd proved—and proved beyond any shadow of a doubt—that as horrible as the rapes had been, the wrong man was on trial.
He asked the jurors to put themselves in Darren's shoes for just a moment. For him, the case had begun the instant his mother had phoned him and told him the police were looking for him. "What does he do?" Jaywalker asked. "He waits right there for them. He accompanies them to the precinct, where, for the first time he hears that he's being accused of committing rapes that happened a month earlier. And his nightmare begins.
"He doesn't concoct some phony alibi for you. He doesn't ask his family to lie for him about where he was back on August sixteenth. He was home in bed, having worked the night shift, just as he did and does, five nights a week. But because he was home in bed alone, his nightmare con tinues.
"He pleads not guilty, and he asks for a trial. He asks that twelve fellow citizens from the Bronx be drawn at random to judge him. He comes to court. Not in some fancy suit and tie, to impress you. No, he comes as who he is. A son, a husband, a father, a breadwinner. He brings with him three pitiful weapons and one absolutely mag nificent one. The three pitiful weapons are his draft card, his sneakers and his Phil Rizzuto baseball mitt. The mag nificent one is the truth.
"He takes the witness stand. And every word he tells you is the truth. On direct examination, on cross-examina tion, and on rebuttal. And the best the prosecution can do is to question him about a two-dollar larceny case that was dismissed a year and a half ago. And accuse him of stut tering more than usual because he's under stress.
"Yet because of his work schedule, because he was home in bed alone when somebody raped these young women, Darren has no way of ending his nightmare. He simply doesn't have the power. Because his family mem bers weren't with him, they can't end his nightmare for him. Nor," Jaywalker confessed, "can I. In another minute, I'll sit down. My job will be done. There will be nothing else I can do or say. Not even Justice Davidoff can end Darren's nightmare. He's the judge of the law in this case, but not the judge of the facts.
"So who's left to deliver Darren from his nightmare?" Jaywalker asked, his voice cracking, almost gone. "Only you. You are the judges of the facts. You've heard the evidence, seen the exhibits and listened to the stipulations. You've seen the pieces that fit, and you've seen the pieces that don't fit. The power is yours, and yours alone, to deliver this innocent young man from his nightmare. And the duty is yours, as well. Be the jury you promised to be. Exercise that power. Do that duty. Darren Kingston is every bit as innocent of these crimes as you and I are. Tell us that. Tell us that with your verdict."
Jaywalker wanted to thank them, but his voice had quit on him, and the last drop of adrenaline had been squeezed from his veins. He opened his mouth one last time, but no sound came out. Hoping they understood, he nodded at them, walked back to his chair at the defense table and sat down.
Jaywalker knew only too well that if there was one ad vantage that outweighs all others at a trial, it was having the last word. Handled properly, that advantage could often tip the scales toward a conviction in a close case. Misused, it can backfire. The inexperienced prosecutor, who devotes his summation to rebutting his adversary's final argument, not only wastes his opportunity, he highlights and rein forces the defense lawyer's points, often leading to an ac quittal.
Jacob Pope established right away that he knew what he was doing. "You are not here," he told the jury, "to deliver anyone from a nightmare. You are not here to use sympathy. You are here to decide, from what you heard on the witness stand, whether or not this man, Darren Kings ton, raped two women on August sixteenth, nineteenseventy-nine.
"We are talking about two very vicious, brutal crimes— rape and oral sodomy. They are not like robbery or burglary. They involve a violation of the person, the indi vidual."
From there, Pope launched into a discussion of the cor roboration requirement, drawing the jury's attention to the medical testimony: the sperm found on Eleanor Cerami's vaginal smear and the lower back tenderness suffered by Joanne Kenarden. In addition to that, he made the argument that the testimony of each victim corrobo rated that of the other—the very argument that Jaywalker had failed to persuade Justice Davidoff was improper. "These are two women who didn't know each other," Pope told the jurors. "They have no reason to cook up a story and come into this courtroom and try to frame somebody. Why should they do that? They're telling you the truth. They're telling you that there's absolutely no doubt in their minds that this is the man who raped them on August sixteenth. Mrs. Cerami and Miss Kenarden sat in this courtroom and looked at this man and told you he raped them. And they know. For fifteen or twenty minutes, both of these women were with the man who victimized them. The same man. They had to stare into the face of the man who was raping them."
Pope discussed the descriptions that the victims had supplied of their attacker. He told the jurors that the de fendant looked older than his age and heavier than his weight. He dismissed as meaningless the failure of the police to find the shirt or the knife. Darren's claim that he drank Seagram's, but not wine, he labeled a fabrication. As for the geographical distance between Darren and Castle Hill, Pope argued that it stood to reason that no one would commit these crimes close to home. Yvette Mon roe's claim to have seen a "look-alike" was worthless.
When it came to Eleanor Cerami's September 17th sighting of her rapist, Pope seemed to have a bit more dif ficulty. "Maybe there was a mistake about the time on that day," he suggested. "Perhaps Mrs. Cerami did see Darren Kingston in her building at nine o'clock, and perhaps an hour later he was at the post office in Manhattan. Perhaps he did see Mr. Hamilton there. But that's not the crucial question. The crucial question is, on August sixteenth, did he rape Mrs. Cerami and Miss Kenarden?
"About the stuttering. Darren Kingston stuttered on the witness stand. He stuttered all through his testimony. But he didn't stutter that morning when he had the knife in his hand, when he was in control of the situation and knew what he wanted. He doesn't have to stutter when he has control.
"Circumcision. Miss Kenarden says the man who raped her was circumcised. There's no question in her mind about that. And the defendant produced Dr. Goddard, who said Darren Kingston is uncircumcised. And I won't dispute that. I am going to take his word. But if the de fendant had had an erection with someone else, and then shortly after that attempted intercourse again, the foreskin might not have gone back down, and it would be possible that a layperson—such as Miss Kenarden—might mistake him as being circumcised. And I submit to you that that's exactly what happened on August sixteenth, because Mrs. Cerami had just been raped by this man. And then, an hour or so later, when Miss Kenarden saw him, he ap peared to be circumcised. That is what occurred in this instance."
Pope discussed the failure of the defense to prove an alibi for August 16th. "Darren Kingston cannot account for
his time on that date," he told the jurors, "because he was in the Castle Hill project raping and orally sodomizing Mrs. Cerami and Miss Kenarden.
"Don't decide this case," he cautioned them, "with your own imagination of what a rapist is. There is no such animal as a person who looks like a rapist. They come in all shapes, all sizes, all ages. You can't look at Darren Kingston and tell he's a rapist just from looking at him. You can't decide his guilt or innocence based on whether or not he looks gentle and unassuming here at the counsel table.
"If, after listening to Mrs. Cerami and Miss Kenarden, and Miss Maldonado and Miss Caldwell, or any of the other witnesses, you believe that Darren Kingston is innocent and didn't commit these crimes, you must find him not guilty. But, ladies and gentlemen, if you believe beyond a reasonable doubt that Darren Kingston is the man who raped and sodomized Mrs. Cerami and Miss Kenarden on the afternoon of August sixteenth, then you must come in here and, unpleasant though it may be, you must find him guilty of having committed those crimes on that day. That also is your sworn duty."
With that, Jacob Pope sat down. Having tried a good case, he had now delivered a good closing argument. Not flashy, not spectacular. But good. Much like Pope himself.
Justice Davidoff recessed for the day, instructing the jurors to return the following morning to hear his charge on the law. He gave them his final admonition to refrain from discussing the case, forming an opinion or visiting the Castle Hill area.
Outside, the Kingstons gave Jaywalker their collective approval of his summation. They seemed genuinely pleased, and their words were nice to hear. Jaywalker thanked them. He'd always been a pushover for praise, and always would be. Then he found his car and drove home, physically and mentally drained, but hopeful. And com forted by the knowledge that there's no night's sleep quite like the sleep after a strong summation.
19
THE SHORTEST DAY
Thursday, March 5th
The jurors filed in and took their seats. The court clerk announced that the judge was about to charge the jury, and that all those wishing to leave should do so now. Then he motioned to one of the uniformed court officers, who locked the doors. They don't do that anymore, but they used to, back then.
Justice Davidoff began his instructions. As do most judges, he read from a prepared text, knowing that any misstatement of the law could provide the basis for an appeal, in the event of a conviction. An acquittal can't be appealed; to permit a retrial after a not-guilty verdict would run afoul of the double jeopardy rule.
The judge told the jurors the same thing Jaywalker had told them earlier: that while he was the judge of the law, they were the judges of the facts. He explained that they were to assess the credibility of the witnesses, cautioning them to consider the interest any witness might have in the outcome of the case. The defendant, he said, had an in terest greater than that of any other witness. Today, that comment alone might be grounds for a reversal. Back then, it was a standard part of the charge.
He instructed the jurors about various terms and propo sitions of law, including the presumption of innocence, the burden of proof and reasonable doubt. "A reasonable doubt," he told them, "isn't just any doubt. It has to be a doubt arising out of the evidence, or the lack of evidence. A doubt you could give a reason for." Next he did his best to explain how the rule requiring corroboration worked.
"You may, if you wish, find that the testimony of each of the two victims corroborates that of the other," he said. It was a reading of the law that Jaywalker disagreed with, and he scribbled a note to himself on the pad in front of him.
He discussed the various counts of the indictment and the elements of each crime charged. He explained that their verdict would have to be unanimous on each count, guilty or not guilty. He concluded by telling them that while it was their duty to express their views and exchange their ideas in an attempt to reach a verdict on each count, they also had a right to stick to their opinions.
Before the jury retired to begin deliberating, the lawyers were invited to approach the bench and place on the record any exception they wanted to take to the charge. Jaywalker took full advantage, starting with Justice Davidoff's hav ing told the jurors that they could consider each rape as corroboration of the other. While the judge noted the ex ception, he said he was going to adhere to his original in struction. "I think I'm right on this," he added, "though I'm aware that it presents an interesting question."
Cold comfort, thought Jaywalker. He listed half a dozen other exceptions he had, but they were pretty minor. Except for the corroboration issue, the charge had been standard stuff.
Then, to the jury, the judge said simply, "All right, you may go to the jury room and begin your deliberations." And one by one, they filed out of the room, those twelve judges of the facts.
Jaywalker looked up at the clock. It was 11:05 a.m.
Some lawyers work while their juries deliberate. Some read newspapers or novels. Others return to their offices, if they're nearby enough, or retire to local bars if they're not, leaving phone numbers with the court clerk.
Jaywalker sweats.
Always has, always will.
The only life experience he'd ever had that he could meaningfully compare to waiting for a verdict was the time he'd spent waiting for the birth of his daughter. In each instance there was the terrible tension of having no idea how long things would take, or if they would turn out all right. In each instance the news could come at any time. And when it came, it would bring either monumental joy or total disaster. And in each instance the outcome was completely out of Jaywalker's hands. His part in the drama was over. All he could do was wait.
There are juries that begin their deliberations by asking to have the various exhibits sent in to them. There are juries that request extensive read-backs of the trial testi mony, both direct and cross-examination. There are juries that want specific portions of the judge's instructions repeated, explained or amplified. There are juries that want all of these things and more.
Darren Kingston's jury seemed interested in none of them. It was almost as though, despite being told they were entitled to them, they didn't quite believe it. Or if they believed it, they didn't care.
Around one o'clock, a delivery boy showed up, bal ancing a huge carton on one shoulder. It contained the jurors' lunches, which were sent in to them. At that point, Justice Davidoff told the lawyers that they might as well go out and eat, as well, since nothing was likely to happen while the jurors had lunch. Jaywalker stuck to his diet. The Kingstons left, but he couldn't imagine them eating much.
Everyone reassembled around two. Still no word from the jury room, which was close enough to the courtroom that raised voices, even if not intelligible, would have drifted in. Weren't they fighting, Jaywalker wondered, or at least disagreeing about something? Hadn't both he and Pope given them plenty to disagree about? Where had they been for the last week and a half?
Five minutes to three.
A buzzer from the jury room.
That could mean one of two things. A verdict, or a note. Jaywalker, his pulse somewhere in the hundreds, listened as a court officer out of his sight knocked loudly on the door to the jury room. "Cease deliberations!" he shouted. There followed an eternity of silence. The door to the jury room was being opened, he knew. The foreman was either telling the officer they had a verdict or handing him a piece of paper. The door closed. Footsteps. The officer appeared in the doorway to the courtroom.
"It's a note," he said.
A reprieve, was all Jaywalker could think. They were still alive. The jurors no doubt wanted some testimony read back, or some clarification on a part of the judge's instruc tions. An exhibit, perhaps. Please let it be Darren's draft card, Jaywalker prayed, or his Phil Rizzuto mitt. Or, better yet, P. G. Hamilton's Form 3971.
They took their places, Pope at his table, Darren and Jay walker at theirs, the Kingston family in the spectator section. Justice Davidoff entered from his robing room, through a side door, and cal
led for the jury to be brought in.
There are a lot of superstitions and old wives'tales about "reading" juries. Jaywalker had his own, and it would always prove infallible. As the jurors come back into the courtroom from deliberating, if they make eye contact with his client and him, it's a good sign. If they don't, it's trouble.
Not one of them looked his way.
Jaywalker recognized the taste of blood even before re alizing that he'd been biting the inside of his cheek.
Justice Davidoff examined the note. "The court," he said after a long moment, "has received a request from the foreman of the jury. It reads as follows. 'Will you accept a verdict of guilty with a recommendation of mercy?'"
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