Jaywalker had by that time given a great deal of thought to the appeal. It would entail researching the case law even more exhaustively than he already had, putting together a written brief, preparing and defending an oral argument, and then doing it all over again if the state's highest court was interested in reviewing the case. A reasonable fee would be right up there with the five thousand dollars Marlin had already paid for the trial. And Jaywalker could certainly use the money. He had a wife and a child at home to support, a mortgage and a growing stack of overdue bills. And his obsession with Darren's case had pretty much driven the rest of his practice into the ground.
Yet there was no way Jaywalker could take more money from the Kingstons. He told Marlin he would file a notice of appeal for Darren, but that he wasn't enough of an ap pellate lawyer to handle the appeal himself. Before going into private practice, Jaywalker had worked for the Legal Aid Society, and he knew they had a very good appeals division. Moreover, they were free. Now he told Marlin that he wanted them to handle it. He promised to work hand-in-hand with them on the brief, and even to argue the case orally if they would let him. But they were the experts, and Darren needed all the help he could get.
"Don't worry about the money, Jay," said Marlin. "I can get the money. I want you to keep working for my son."
"I'll keep working for your son," Jaywalker assured him. He wanted to add that it wasn't just an idle promise on his part, that by this time it would be constitutionally impos sible for him to stop working for Darren. Instead, he came up with a more rational excuse for bringing Legal Aid in.
"Suppose, after reading the trial transcript, they decide that I messed up? I'd want them to feel free to say so, and to ask for a new trial because of incompetence of counsel."
"Incompetence of counsel? Like, you didn't do your job?" Marlin laughed out loud. "You know how much I love my son, Jay?"
"I think so."
"You know how much I believe he's innocent?"
Jaywalker nodded.
"Jay," said Marlin, "I seen you fight for my son like a tiger, and I seen you cry for him like a baby. I'd tell my son to serve every day of those ten years before I'd let anyone say you didn't do your job."
Jaywalker was tempted to debate the issue. A lawyer could do his job and still end up providing what the courts termed inadequate assistance of counsel. But he knew Marlin didn't want to hear nuances, so he simply said, "Thank you," and left it at that. But he continued to be firm about bringing in reinforcements. Jaywalker had lived with the case for the better part of a year by now. He'd done his best, and his best hadn't been good enough. Nothing he'd done had worked—before, during or after the trial. It was time to get help.
He served and filed the notice of appeal, including in it a statement that Darren was without funds and would need counsel appointed to represent him on the appeal. And then, perhaps because his symbolic abandonment of Darren caused him to feel guilty, however irrationally, he cranked the starter on hisVW and headed once more for Castle Hill.
Late that July, as a result of his conviction and sentence, Darren Kingston was indefinitely suspended without pay by the post office. His supervisor, P. G. Hamilton, received an official reprimand from headquarters in Washington for having permitted Darren to return to work.
Out of a job, Darren became depressed and, after a time, nearly despondent. Prior to his arrest, both he and his wife had been working, and between their two salaries, they'd been self-sufficient. They'd maintained their own apart ment, supported their son, and had even been saving money in anticipation of the arrival of their second child. Follow ing Darren's arrest, they'd moved back in with his parents. Now, with a new baby at home, Charlene had been forced to stop working, and with the loss of his job, Darren's ability to support his wife and children ended abruptly. Reluctantly, he applied for public assistance. In a family where both the men and women were accustomed to working regularly, it was one more humiliation in a never ending series. And it couldn't have been made any easier by the fact that Darren's mother worked for the same Welfare Department that would now be issuing his checks. August 19th, 1980
More than a year had passed since the rapes. Jaywalker found himself in a fourth-floor courtroom at 100 Centre Street, the Manhattan Criminal Courthouse. He'd walked into the pen area to conduct an interview. Another lawyer was speaking with a client down at one end of the steel bars. A third prisoner urinated noisily into an open toilet.
Jaywalker muttered a greeting to the corrections of ficers on duty. One of them commented on the weather. Probably that it was hot.
Jaywalker can no longer recall the name of the client he interviewed that day, or what he was charged with, or what he had to say about those charges. He can recall only that at some point in the conversation he became aware that he'd tuned the man out and was listening instead to the voices coming from the other end of the pen.
"So altogether, Mr. Jackson," the lawyer was saying, "you're charged with three rapes, as well as possession of the knife you had on you when they picked you up."
Jaywalker moved to a spot where he could get a look at this Mr. Jackson. The man he saw was a dead ringer for Darren. A black man of medium complexion, twenty-five years old or so. Same height, but a bit heavier-looking. Multiple rape charges. Even a knife. Jaywalker felt his heart pounding wildly. Totally ignoring his own client, he listened to the rest of the conversation. Back out in the courtroom, he waited until the case had been called and adjourned. Then he checked the court calendar.
JACKSON, Otis (27) Rape, Poss. Of Weapon
That evening, he fought the impulse to call Darren. He simply didn't have enough to go on yet, and given how de pressed Darren was, he didn't want to raise his hopes only to destroy them. But that night he lay awake for hours, feeling the adrenaline pump and the hope build.
The adrenaline pumped and the hope built until three o'clock the following afternoon, when Jaywalker was able to steal a look at Otis Jackson's court papers. Otis was a twenty-seven-year-old black male. He stood five foot nine and weighed 175 pounds, the same weight the Castle Hill victims had estimated for their attacker. And the weapon he'd been arrested with was described as a "kitchen knife, approx. 10 inches in overall length, with a thin, shiney [sic] blade approx. 5 inches in length."
But according to Otis's fingerprint sheet, he'd spent all of August of 1979, and most of September, as a guest of the House of Detention for Men on Rikers Island, awaiting disposition of a burglary charge.
In September, Jaywalker learned that the Legal Aid Society had in fact been appointed to represent Darren Kingston on his appeal. He phoned Will Hellerman, the head of their appeals division and the man who'd been instrumen tal in landing Jaywalker a job with Legal Aid four years earlier. He told Will about the case, and about how strongly he believed in Darren's innocence. He offered him whatever help he could use. Hellerman said he would see to it that one of the senior members of his staff got assigned to the case.
September gave way to October, and October to No vember. The days grew shorter and colder. It had been well over a year now since Darren's arrest, eight months since his conviction. Jaywalker continued to comb the news papers and follow up on any leads he spotted. He kept scanning court calendars, checking out defendants accused of rape. And still he made his trips to Castle Hill. But he knew he was only fooling himself. Too much time had passed. The real rapist had moved on or been arrested, maybe even died, or had taken up some new perversion, leaving Darren to face his prison sentence and Jaywalker to chase shadows in the Bronx.
He slowly came to realize that Darren's only hope lay in the appeal. A totally innocent man stood wrongly con victed of horrendous crimes, and now the only thing standing between him and state prison was the appellate process. But that process, Jaywalker knew, was a cold one, a bloodless one. If Darren was to be saved by it, it wouldn't be because he was the wrong man, but because of some legal technicality, some procedural error that had nothing to do with guilt or innocence.
But so be it. If the appeal was Darren's only chance, then the appeal it would be. A win was a win, after all. And they had to win. In criminal law, there are no trophies handed out for second place, no honorable mentions. You won it all, or you went off and did your time.
Jaywalker phoned Legal Aid Appeals for the twentieth time. For the twentieth time, the secretary, with whom he was by this time on a first-name basis, told him they still hadn't received the transcript of Darren's trial, and there fore no staff member had yet been assigned to the case. For the twentieth time, Jaywalker left instructions asking to be called as soon as someone was assigned. The secre tary assured him that she would see to it. No, she didn't need his phone number. She knew it by heart.
Winter came.
Jaywalker cut down on his trips to Castle Hill. He tried other cases, some of them involving defendants who'd done pretty much what they'd been accused of. He won them all. With each acquittal, he asked himself what he'd done wrong in Darren's case, and came up with plenty of answers. Had he become too personally involved in it, like the doctor who treats a member of his own family? Should he have kept Darren off the stand? Should he have cross-examined Tania Maldonado and Elvira Caldwell more fully? He second-guessed his voir dire of the jury panel, his opening statement, his summation and every thing in between. He cursed himself for not having called John McCarthy to the stand, for not putting Marlin on. He wondered how Justice Davidoff would have decided the case, had Jaywalker decided to go nonjury.
The list was endless, the possibilities maddening.
He saw little of Darren and spoke to him only infre quently. It seemed to Jaywalker that the stutter had grown worse than ever. He'd taken to speaking to Charlene to find out how Darren was doing. Or she would call him when ever she came across a newspaper item about a rape case. On the rare occasion when Jaywalker hadn't already seen it himself, he would check it out. Invariably, some simi larity would appear and he would feel a sudden flicker of hope. But then something would end up wrong with it. The suspect would turn out to be white or Hispanic, or too young or too old, too tall or too short, or in jail at the time of the Castle Hill rapes. Jaywalker would report back to Charlene and give her the news. She would say she'd figured as much and apologize for having bothered him. Jaywalker would assure her it hadn't been any bother. And he would tell her in the most positive voice he could muster that one of these days, one of her leads was going to check out. He was quite sure that neither of them believed it anymore. Yet still they continued to repeat their little ritual each time, going through the motions, playing the game, putting on their brave faces, saying all the right things.
Because to do otherwise would have been to give up and admit defeat. And neither of them, it seemed, knew how to do that.
Christmas approached.
Jaywalker and his family neither flew to Florida nor went skiing this time around. There simply wasn't the money. As they wrapped presents and decorated for the holidays, Jaywalker tried to imagine the scene at the Kingston household. Afraid that his voice on the phone would do nothing but remind them of Darren's troubles, he convinced himself that it was best not to call them. That was nonsense, of course. The truth was, he simply couldn't bring himself to dial the phone. Still, the day before Christ mas, a greeting card arrived in the mail, signed by all of them, warmly thanking him for everything. It made Jay walker feel ashamed for not having called and for failing them, and guilty over his own good fortune.
The year drew to an end, and at a friend's New Year's Eve gathering, it came Jaywalker's turn to make a toast. As he raised his glass, he caught sight of someone pouring from a bottle of Seagram's V.O. He fled from the room and locked himself in the bathroom. There he lay on the floor, doubled over in pain, sobbing uncontrollably, the water running full force in the sink to mask the sound. When he finally emerged, he apologized for having had too much to drink.
He didn't know what else to say.
23
NO PLACE TO BE
In late January, Jaywalker received a phone call. The young woman on the other end introduced herself as Carolyn Oates. She was a lawyer with the appeals division of the Legal Aid Society, she explained, and she'd been assigned the case of The People of the State of New York v. Darren Kingston. She'd just finished reading the tran script of the trial and had come across an envelope inserted among the pages. Opening it up, she'd found twenty message slips requesting that Jaywalker be called.
They arranged to meet.
The fact that Darren's appeal would finally be moving forward was both good news and bad. Good, because the appeal had come to represent their last real hope to change the outcome of the trial. Bad, because it meant the clock had begun running again. Within a few short months, the briefs would be written, the oral argument heard and a decision handed down. If that decision went against them and the state's highest court were to decline to consider the case further—as it does ninety-nine percent of the time—it meant there would be nothing left to prevent Darren from going to prison to begin serving his sentence.
They met a few days later, over grilled cheese sand wiches in the luncheonette on the ground floor of Jay walker's office building. Carolyn Oates struck him as young, too young to be one of the senior staff members. Will Hel lerman had promised he would assign someone experienced to handle the appeal. But she seemed smart, knowledgeable and interested in the case. What impressed Jaywalker even more was that fact that she'd already reached out to Darren and Charlene, and arranged to meet them. Because appel late lawyers are notorious for their reluctance to get involved with their clients on a personal level, Carolyn's overture to the Kingstons immediately won Jaywalker over.
He felt the most important thing he could contribute at that point was to convince her of Darren's innocence. Even though the appeal would dance around that issue and never confront it head-on, Jaywalker wanted to turn Carolyn into as much a believer as he himself was. And as the hour passed and the grilled cheese disappeared, he felt he was able to do just that. It seemed, in fact, that he could convince just about everyone. Everyone, that was, except the twelve people who'd mattered.
They discussed some of the legal issues in the case. Carolyn believed, as did Jaywalker, that Justice Davidoff's permitting the rebuttal testimony of Tania Maldonado and Elvira Caldwell had been wrong. And she shared his belief that the corroboration issue was fertile ground. But even as they fed off each other's optimism, they were both keenly aware of the reality of appellate practice. Only a small percentage of convictions get reversed. And asking a court to upset a guilty verdict in an armed, multiple rape case was asking a lot. Beyond that, they knew there was a major obstacle they had to contend with on the corrobo ration issue. Under pressure from women's groups, the legislature had relaxed the corroboration requirement since the time of the Castle Hill rapes. In their brief, Carolyn Oates and Jaywalker would be trying to persuade the court to throw out a conviction that met the standards of the law now in effect. That meant their plea would hardly be the kind of stuff that cries out for justice.
Winter gave way to spring.
Jaywalker took a ride up to Ossining one afternoon, in order to get a look at an inmate at Sing Sing Prison who'd recently been convicted of a rape committed in the South Bronx. But his face bore obvious burn scars from a child hood accident.
Jaywalker began aiming his VW for the Castle Hill Houses again, though not on as regular a basis as before. But still he went. Old habits die hard.
He kept in touch with Carolyn Oates. They agreed to limit the brief to their three best points. They both felt that the inclusion of weaker points would only cost them cred ibility in the long run and detract from the final product.
In April, Charlene called to say she and Darren had received notification from the Housing Authority that the City of New York was moving to evict them because of Darren's conviction. Although they were living with his parents, they had continued to pay the modest rent on their own apartment, digging into wha
tever savings they had left. It served as a place to go when the pressure became too much. More importantly, Jaywalker suspected, it rep resented hope. It was their apartment, their home. It was the place they would return to once Darren was vindi cated. Now the city was threatening to take it away from them.
Jaywalker told Charlene to send him the notice, that he would help them fight it if he could. When it arrived in the mail, he studied the specifications.
On or about September 12, 1979, you, Darren Kingston, did unlawfully force a project tenant to engage in sexual intercourse against her will.
Further, you, Darren Kingston, did unlawfully possess a weapon, to wit, a knife.
By virtue of the above, your continued occu pancy constitutes a detriment to the health, safety and/or morals of your neighbors and the commu nity; an adverse influence upon sound family and community life; and a source of danger to the peaceful occupation of other tenants.
Bronx Justice Page 27