Bronx Justice

by Joseph Teller

  The legal term for what he's doing, that bailed-out de fendant, happens to be the same as the military term. He's surrendering. Some can't bring themselves to do it. They abscond; they jump bail. Some do so elaborately, staging their deaths, moving away, changing their identities, al tering their appearances. Others do it more simply, as if biding their time while waiting for the inevitable to catch up with them. Still others commit new crimes, figuring they're going away anyway.

  Of the out-on-bail defendants who can bring themselves to surrender, there are those who work out and bulk up as the day of reckoning approaches, knowing they'll need to be tough. There are those who shave their heads, figuring looking tough is the next best thing. Jaywalker had one client who'd gone to the dentist the day before and had a gold tooth pulled, because he didn't want another inmate knock ing it out of his mouth without the benefit of Novocain.

  Darren Kingston did none of these things. Just as he had long felt that his innocence would be established at some point, he now believed that before they put him back in jail, something would happen, something would intervene to prevent it, or at least postpone it once again. Only this time, he had at least a semirational basis for his belief.

  Jaywalker hadn't exactly been idle over the past three months, what with arranging, attending and taping two hypnosis sessions and one sodium amytol interview; running down half a dozen leads from newspaper items and other sources; working on a motion to set aside the verdict; and spending literally hundreds of hours hanging around the Castle Hill Houses.

  In addition to those chores, Jaywalker had made half a dozen trips to the Bronx County Courthouse with a single purpose in mind. He wanted to keep Darren out of jail after his sentencing. The vehicle for doing that was an appeal bond. It worked the same way a regular bail bond did, except that it covered the period from sentencing through the decision on an appeal, a period that could cover months and sometimes even several years.

  The public can hardly be blamed for harboring a mis conception about the frequency with which appeal bonds are granted. Open the newspaper or turn on the news, and before too long you'll come across someone who's out on appeal, even though he's already been sentenced to, say, five years in prison. But look again. That someone, it usually turns out, is a former public official, an enter tainer, a sports figure or a celebrity of some other stripe. He's out because the same visibility that made him news worthy in the first place will continue to make him news worthy, and therefore available, to the criminal justice system, should someone go looking for him. And because his crime—larceny by signature, typically, or driving under the influence—is the sort of transgression that a lot of judges can relate to, sometimes even muttering into their robes, "There but for the grace of God…"

  Rapists need not apply.

  Especially black, knife-wielding, serial rapists.

  The truth is that only a minuscule number of defendants are granted appeal bonds, a tiny fraction of a single percent age point. Defendants sentenced on crimes of violence are among the least likely candidates, as are those convicted of serious sex offenses, or those with multiple victims, or those who've used weapons in the commission of their crimes. Darren, of course, qualified as all of the above.

  But in spite of the jury's verdict, there were still some

  positive things to say about Darren. He was gentle, polite and soft-spoken. He came from a good family, had a wife and now two kids, and held down a decent job. All his roots and connections were right there in the Bronx. He had no passport, no driver's license, no place to flee to, even had he chosen to flee. Granted bail following his arrest, he'd never missed or been late for a single court appearance. All those things counted. But there was one thing that counted more. There was the vague, unspoken notion that maybe, just maybe, just possibly, Darren Kingston was completely innocent. By now, Jacob Pope had to have that notion, somewhere deep in his gut. Jay walker had seen to that. And over the three months since the verdict, Jaywalker had made enlisting Pope's help on an appeal bond a crusade of sorts, second only to finding the real rapist.

  He hoped to do better on this one than he'd so far done on the other.

  He'd begun with the suggestion of yet another poly graph, but Pope had been cool to the mention of Cleve Bryant's name. Then Jaywalker had invited Pope to Herbert Spraigue's hypnosis regression, and Stephen Corman's sodium amytol interview. When Pope hadn't shown, whether by distraction or design, Jaywalker had brought him the tapes, even listening to one of them with him. And in the past month, Jaywalker had put his cards squarely on the table.

  "I'm going to ask Davidoff to continue bail," he'd told Pope. "And I want you to join me in the application. You can say whatever you want. Tell him the corroboration issue is an intriguing one, or the rebuttal witnesses raise a good question of law. Tell him you think his rulings were right, but it'll be interesting to see what an appellate court says."

  In the end, as Jaywalker had fully expected, Pope wouldn't go along it with. But he did the next best thing: he agreed not to oppose the application, so long as Davidoff didn't push him to take a position one way or the other.

  "Because if the judge presses me," Pope explained, "I'm going to have to say my office opposes bail."

  A week after that conversation, Jaywalker had hap pened to bump in to Max Davidoff. It might have had something to do with the fact that Jaywalker had been waiting outside the judge's courtroom for forty-five min utes. But Davidoff had no way of knowing that.

  "How's that young man doing?" the judge asked. "Kingston."

  It was about as much as either of them was ethically permitted to say, in the absence of Jacob Pope or someone else from the D.A.'s office. And no doubt Davidoff ex pected to hear an equally circumspect answer, something like, "Not so good," or "He's hanging in there."

  Instead, Jaywalker took his shot. "Actually, he's feeling pretty relieved right now. I just told him that Mr. Pope's going to take no position on an appeal bond. He took it like a reprieve from the governor."

  Davidoff, completely thrown off guard, could only raise one bushy white eyebrow, mutter something unintelligible and walk off. But at least whatever he'd muttered hadn't sounded like "No." He'd had his chance to object, and he hadn't taken it.

  Knowing Davidoff was likely to ask Pope about the matter, Jaywalker hurried to beat him to the punch. He made a beeline for Pope's office.

  "I just happened to run in to Justice Davidoff," he said. "He asked me what was new." It was a stretch, but not much of one for Jaywalker. "So I told him about our con versation. I hope that's okay with you. He kind of caught me by surprise."

  Pope didn't seem overjoyed by the development, but he didn't go ballistic. So now he'd had his chance to object, too, and he hadn't.

  And the seed had been planted.

  The American system of justice is an adversarial one, pitting one lawyer against another, with a supposedly impartial judge placed between them to resolve any dis putes. When one of the lawyers says he doesn't oppose what the other one's asking for, it's the functional equiv alent of saying, "Go ahead, I don't care one way or the other." At that point, the judge is off the hook, indemni fied from after-the-fact criticism. Or, in plainer language, his ass is covered.

  Ten days later, as fate would have it, Jaywalker bumped in to Davidoff again.

  "Did Pope really say he has no objection to continuing bail?" he asked.

  "Scout's honor," said Jaywalker. It was close enough, especially for someone who'd never been a Scout and deemed honor a vastly overrated virtue. "He's going to take no position. He said just don't press him too hard to come right out and say he's okay with it."

  "Protecting his boss?" Davidoff asked.

  "There was a time," waxed Jaywalker, "when the boss didn't need protecting." That time, he didn't need to add, was when Max Davidoff had been district attorney.

  And so the seed took root and sprouted.

  By the time they assembled for sentencing, the Kingstons knew that however
much time Justice Davidoff was going to give Darren—and it could be as much as fifty years—there was a very good chance he was going to let him stay out pending his appeal. Although even a very good chance may provide cold comfort indeed at such times.

  THE CLERK: Number Six on the sentence calen dar, Darren Kingston. Ready for sentence?

  JAYWALKER: Yes, we are.

  THE CLERK: Darren Kingston, is that your name?

  DARREN: Y-y-yes.

  Jacob Pope spoke first. He recommended that the court, in imposing sentence on the Cerami and Kenarden rapes, "cover" the Maldonado and Caldwell attempted rapes. This was either a rather generous move on Pope's part— since it meant that there wouldn't have to be a second, and perhaps even a third, trial—or yet another indication that by this time Pope himself harbored some nagging doubt about Darren's guilt and had lost the stomach for prose cuting him further.

  Beyond that, he observed that the court was very fa miliar with the facts of the case and stated that he had no particular recommendation for length of sentence. This, too, was something of a concession on Pope's part. An as sistant district attorney who's won a conviction after trial on a pair of knifepoint rapes typically urges the judge to impose the maximum sentence allowed by law and occa sionally even more than that. The fact that Jacob Pope was urging nothing at all spoke volumes. As he had with his take-no-position stance on continuing bail, Pope was now telling Justice Davidoff that any sentence he chose to impose was okay with the prosecution.

  Jaywalker spoke much longer. He began by thanking Pope for his professionalism. Then he moved to set aside the verdict, citing many of the same issues he'd raised at trial—the racially unrepresentative jury panel, the insuf ficient corroboration, the improper rebuttal case and the discrepancies between the man described by the victims and the one convicted by the jury. Predictably, Davidoff denied the motion.

  Next Jaywalker talked about the polygraphs Darren had taken, the hypnosis sessions and the sodium amytol interview. Strictly speaking, none of those matters bore any relevance to sentencing, but Jaywalker wanted to get them into the record anyway. Months from now, a panel of appellate judges was going to have to read the transcript, and Jaywalker didn't want to allow them the luxury of skimming through it as just another case. He wanted them to see how passionately he believed in Darren's innocence, and to know that he wasn't alone in his belief. He wanted, in other words, to make it as hard as he possibly could for them to affirm the conviction. He wanted them to read his words and choke on them.

  Jaywalker pointed to Darren's work record, noting that the post office had seen fit to take him back despite the conviction. He mentioned the lack of any prior convic tion—indeed, any prior arrest for a sex crime of any sort. He pointed, literally, to Darren's family. It had been his in tention to name them, one by one. But now, as he turned to them, he saw Inez, Marlin and Charlene sitting together, their hands intertwined, and the sight overwhelmed him. All his pain and frustration and anger boiled over. All the interviews and sessions and tests they'd been through came back to him, all the freezing afternoons he'd spent in Castle Hill. His eyes filled with tears, and as he looked back down at his notes, the words blurred and disappeared from view. As he continued to speak, the tears rolled freely down his face, and his voice cracked like a schoolboy's.

  JAYWALKER: I believe this case is one that has trou bled the district attorney's office. I believe it is a case that has troubled Your Honor. I hope each of you has doubts as to the defendant's guilt on these charges, regardless of the jury's verdict. I myself have no doubt whatsoever. I know that the man standing next to me is as innocent of these charges as you and I are.

  They were the last words he could get out.

  THE CLERK: Mr. Kingston, have you anything to say on your own behalf before the court imposes sen tence?

  DARREN: Y-y-yes. Your Honor, I'd just like to say that I'm as innocent of these charges as any man in the c-c-c-courtroom. I went along with the court sys tem 'cause I had nothing t-t-to hide. I came here with the truth. I made no alibis, no excuses. I came here with the truth b-b-because I knew I was innocent. I don't believe that anybody who's listened to

  this case can say that they b-b-believe I'm guilty. I think anybody who's related to this c-case must feel inside that I'm innocent. And I just hope that th-th this moral obligation I hope they have frees me from this conviction.

  Justice Davidoff began by saying that every case dis turbed him. He noted that the law allowed him to impose a sentence of as much as twenty-five years on each charge, and to run the terms consecutively. Normally, he said, he would do just that, and set a minimum term, as well as a maximum. But, having read the probation re port, and having considered the defendant's background and other matters, he'd decided against doing either of those things.

  THE COURT: But the jury has spoken, and I do have an obligation. I must impose a term of impris onment in this case. The jury had a basis to make their determination. They had a duty to evaluate the evidence. They were here. You disagree with their verdict. But nevertheless, based upon the testimony, they had a right to find as they did. That was their privilege, and that was their obligation. The defen dant, having been convicted of Rape in the First De gree, is sentenced to a term of imprisonment not to exceed ten years.

  The judge went on to impose an additional ten-year sentence on the remaining rape and sodomy counts, as well as a one-year term on the weapon charge. But he directed that all of the sentences run concurrently. The result was a single ten-year sentence, with no required minimum. It was as good as Jaywalker could have hoped for, probably much better. But it was still ten years.

  THE COURT: Furthermore, because of several in teresting legal questions that arose during the course of the trial, unless the People have an objection, I am prepared to continue the defendant's present bail conditions pending the outcome of any appeal. Mr. Pope?

  POPE: The People have no objection.

  Downstairs, Jaywalker huddled with the Kingstons, as he had so many times before. As always, they thanked him. And they conceded that things could have turned out worse. Even Pope, Inez mentioned, had been reasonable.

  "It would all have been reasonable," Marlin observed, "if my son was guilty."

  They said their goodbyes. Jaywalker found his car, a parking ticket beneath one windshield wiper. He cursed whoever had given it to him, cursed the jury who'd made him come back to court, cursed his profession. Then, because it was still early in the day and he had nothing better to do, he drove to Castle Hill.

  The next day, Jaywalker got a call from somebody named Ed Kirkbride. He said he was a reporter for the Daily News. He'd heard about the Kingston case, probably from a court officer or someone else at the courthouse, who might or might not have pocketed a twenty-dollar bill for passing along the word. Kirkbride was interested in doing a piece for the upcoming Sunday edition. He thought some publicity might help, or so he said. Pointedly, he men tioned that his paper had the largest daily circulation in the world.

  "Interested?" he asked.

  For Jaywalker, this marked a first. Over the years to come, he would handle more than his share of high-profile cases, and his answer to the interview requests that came with them would always be pretty much the same: "Thanks, but we'll try our case in court."

  Then he thought of Darren, and his willingness to try anything, no matter how untraditional, expensive or per sonally inconvenient.

  "I'm interested," said Jaywalker.

  Kirkbride showed up the following day to interview Darren and Jaywalker. He brought along a photographer, who took several shots of them.

  The story, and one of the photos, filled all of Page 5 of June 23rd's Sunday News.

  CITED IN 4 RAPES, CONVICTED

  IN 2, BUT DOUBTS LINGER

  Jaywalker read the article. It was straightforward stuff, drawn heavily from what he'd told Kirkbride about the case. He sat back, waiting for the phone to ring. Would the real rapist come forward to correct the
injustice? Would one of the victims reconsider and admit her mistake? Would the photo bring leads to a look-alike?

  The very next day, a woman from Bayside called to say she'd read the story and was impressed with Jaywalker's diligence. Did he by any chance handle divorces?

  Other than that, the phone didn't ring.

  On July 10th, Jaywalker appeared in court to have papers signed for Darren's appeal bond. The surety company's agent had insisted on rewriting the bond, requiring Marlin to pay a second—sizeable—premium. By that time he'd paid Jaywalker's fee in full, the two bail-bond premiums, John McCarthy's fee, the private polygraph cost, and the fees of Herbert Spraigue and Stephen Corman. In addition to all of that, he'd put up his home and every dollar he had or could borrow as collateral for the bonds. Now he asked Jaywalker to handle Darren's appeal, explaining that he could borrow the money from his pension plan at the Transit Authority.