Guilty as Sin

by Joseph Teller

  Bravo, thought Jaywalker. He and Barnett had worked hard trying to come up with zingers like that, hoping there’d be opportunities to use them. Score one for the bad guys.

  SHAUGHNESSEY: You knew Mr. Hightower was using?

  BARNETT: He told me he was. It was one of the things he told me, trying to convince me to help him.

  SHAUGHNESSEY: So you helped him get money to feed his drug habit. You enabled him.

  BARNETT: Actually, I was still refusing to help him at that point. It was only when he reminded me about the debt that I agreed to help him.

  SHAUGHNESSEY: I see. You yourself weren’t using drugs at that point, were you?

  Here it comes, thought Jaywalker. You’re a seller, not a user.

  BARNETT: No, ma’am, I wasn’t.

  SHAUGHNESSEY: You had no habit of your own to support, did you?

  BARNETT: No, ma’am.

  SHAUGHNESSEY: Yet you thought it was okay to sell heroin so others could use it?

  BARNETT: I never thought it was okay, not even back when I used to sell to support my own habit. I always knew it was wrong.

  SHAUGHNESSEY: And being a member of the Muslim religion, you knew it was wrong to use alcohol or illegal drugs. Did it ever occur to you that it might also be wrong to sell illegal drugs?

  Good question, thought Jaywalker, and one he hadn’t seen coming. He bit down on the inside of his mouth, hoping that Barnett wouldn’t try to split hairs and insist that while using was prohibited by the Koran, selling wasn’t covered.

  BARNETT: Please forgive me, ma’am, but the religion is called Islam. One who practices it is a Muslim. And yes, it was wrong of me, as a practicing Muslim, to do what I did, and I knew that. I am by no means perfect, and I have never claimed to be. I’ve made more than my share of mistakes in my life, and this was certainly one of them. For a lot of reasons, not just religious.

  Not bad for an ad lib.

  Looking to regroup, Shaughnessey sought a safe place and apparently figured a good bet could be found in Alonzo Barnett’s criminal record. But she hadn’t counted on the weeks of drilling Jaywalker and his client had put in on just that subject. For the next half hour, she tried to catch Barnett denying his guilt of some twenty-year-old arrest or hedging about some conviction from a decade ago. But she got nowhere. Alonzo Barnett was that rare defendant who truly understood, actually got it, that his record was his record, and as bad as it was, he could only make it worse by attempting to minimize it.

  He was, in other words, a Jaywalker defendant.

  Finally Shaughnessey turned her attention to the one area Jaywalker expected his client to have real difficulty with. She asked him who’d sold him the drugs.

  Not that Jaywalker hadn’t anticipated the question; he had. Still, asking a man to name and identify his drug connection is pretty much the same as asking him to become a snitch. And the problem is only heightened when the man being asked has done time and spent years living under a code that reduces snitches to the lowest of the low. In prison you have your general population, comprised of inmates who are free to mingle with each other. Free to mingle is something of a misnomer in this case, of course, and is generally limited to mealtimes and yard time, with an extra hour thrown in now and then.

  Then you have younger inmates, those below twenty-one or maybe nineteen, who are almost always separately housed for a variety of reasons, including preventing them from expanding their knowledge as apprentices of hardened criminals. After them come homosexuals—prison administrators will no doubt get around to adopting the word gay eventually, but seem in no particular rush to do so—psychiatric cases, the very old, the very weak, sex offenders, and anyone else who might be considered a likely target of violence. A corrupt cop or public official, say, or a transgendered individual. And finally, way down at the bottom of the barrel where the scum settles, the snitches.

  Alonzo Barnett had no interest in being labeled a snitch, certainly not while he was in jail, and not now, when the overwhelming odds were that he’d soon be shipped back to prison. He’d told Jaywalker that, and Jaywalker hadn’t needed to ask him why. His suggestion to Barnett had been to make up a name and an apartment number on the twelfth floor of 345 West 127th Street, where Investigator Lance Bucknell claimed he’d gone during the third transaction. After all, according to Barnett, Bucknell had been lying; the apartment Barnett had actually gone to was on the eighth floor. In either event, almost two years had passed, and even were Barnett to now pinpoint a particular apartment, no judge in his right mind was going to sign a search warrant on information that stale. Which narrowed it down to the handful of judges who would.

  Barnett had initially balked at the suggestion. He didn’t like the idea of supplying a name and identifying an apartment, even if the name was fictitious and the apartment wasn’t the one he’d gone to. But over the weeks they’d talked about it, he’d been forced to agree that if asked, he had to come up with something; he couldn’t refuse to answer the question. There was the doctor-patient privilege, the priest-penitent privilege, the husband-wife privilege, and lately the president-advisor privilege. But no one had gone so far as to argue the existence of a dealer-supplier privilege. Not even Jaywalker.

  But even as Alonzo Barnett had acknowledged that he’d have to answer the question if it were put to him, he never had told Jaywalker what his answer might be. Eventually Jaywalker had stopped pressing him, figuring that if and when the time came, Barnett would deal with it as best as he could. Though to Jaywalker’s way of thinking, it had always been a matter of when, rather than if.

  And now they were there.

  SHAUGHNESSEY: Did you indeed go to 345 West 127th Street on each of the three occasions?

  BARNETT: Yes, I did.

  SHAUGHNESSEY: Exactly as Investigator Bucknell testified?

  BARNETT: Yes, ma’am.

  SHAUGHNESSEY: And did you go to that building to obtain heroin from your connection?

  BARNETT: I went there to obtain heroin. I have a bit of problem with your use of the term connection. I went to the person who I’d agreed to introduce Mr. Hightower and his friend to. When he refused to meet with either of them, I agreed to take the money and get the drugs for them. But if you want to call him my connection, I’m willing to use your term.

  SHAUGHNESSEY: Thank you. And did you in fact go to the twelfth floor, as Investigator Bucknell testified you did?

  BARNETT: No, ma’am, I did not.

  SHAUGHNESSEY: You did hear Bucknell say that?

  BARNETT: Yes, I did. Absolutely.

  SHAUGHNESSEY: Are you telling us he lied when he said that?

  BARNETT: I honestly don’t know why he said that. He may have been lying. He may have been mistaken. He may have made it up to cover for the fact that he wasn’t able to see where I went. All I can tell you is the truth. And the truth is, I didn’t go to the twelfth floor.

  SHAUGHNESSEY: Ever?

  BARNETT: Ever.

  SHAUGHNESSEY: So when Investigator Bucknell testified that he rode in the elevator with you and saw you press the button for the twelfth floor, that never happened?

  BARNETT: That’s right. That never happened. If that man had gotten onto the elevator with me, I would have immediately stepped off and walked out of the building. He has cop written all over him.

  SHAUGHNESSEY: So where did you go?

  BARNETT: To the eighth floor.

  SHAUGHNESSEY: What apartment?

  BARNETT: Eight-oh-five.

  SHAUGHNESSEY: Whose apartment was that?

  BARNETT: A man they use to call “One-Eyed Jack.” Got the nickname because he’d lost an eye in a shoot-out. I never did know his real name. But not too long after my arrest, the word got around that he was a snitch, an informer for the police. So he left town in a hurry.

  SHAUGHNESSEY: And just how do you happen to know all that?

  BARNETT: I’ve been on Rikers Island going on two years now. Guys don’t have much to do out there except talk about other guys.
And One-Eyed Jack was one of the guys they talked about.

  SHAUGHNESSEY: And you expect me to believe that?

  BARNETT: Most respectfully, ma’am, I don’t care too much what you believe. What I care is what these folks sitting over here believe. [Points to jury] And I suspect they can recognize the truth when they hear it.

  To her credit, Miki Shaughnessey plunged on without taking time out to wipe the egg off her face. She got Barnett to admit that with the exception of the twelfth-floor/eighth-floor business, just about everything else her witnesses had testified to was true.

  “So why should they lie about that?” she asked him.

  “I have no idea,” said Barnett. “Maybe you should ask them.”

  His response marked the only time in a lengthy cross-examination when he verged on testiness. But with that single exception, Alonzo Barnett had been that rarest of witnesses who somehow managed to exceed even Jaywalker’s expectations. Without once raising his voice or losing his composure, he’d taken just about everything a talented cross-examiner had thrown at him and turned it to his advantage. When Miki Shaughnessey finally gave up a few minutes later, Jaywalker resisted the temptation to conduct a redirect examination aimed at rehabilitating his witness.

  There was simply nothing to rehabilitate.

  “The defense rests,” he announced.

  “And the People?” asked Judge Levine.

  “The People intend to call rebuttal witnesses,” said Shaughnessey.

  Just as Jaywalker had expected her to.

  That night Jaywalker replayed the day’s events in his mind, as he always did when he was on trial. They’d ended with an early recess, with Shirley Levine granting Miki Shaughnessey’s request to go over to Wednesday to give her a chance to assemble her rebuttal witnesses. But Shaughnessey’s long cross-examination of Alonzo Barnett had clearly been a high-water mark for the defense.

  If only Barnett hadn’t taken the bait and stepped out of character at the very end, thought Jaywalker. Until then, he’d done everything right. Not content with simply stating that he had no idea why the prosecution’s witnesses would choose to lie about something so minor and tangential as which floor in a building he’d gone to, he’d let himself slip and add “Maybe you should ask them” to his answer.

  And now she was going to do just that, with her rebuttal witnesses.

  “Idiot.”

  “Who, me?”

  For a moment he mistook the voice for his client’s and imagined they were talking together in the pen adjoining the courtroom. Though he couldn’t explain the surrounding darkness. Then he realized that he was lying in bed and the voice had been his wife’s, thick with sleep.

  “Who’s an idiot?” she asked again.

  “My client.” And he proceeded to describe Alonzo Barnett’s exchange with the prosecutor.

  Jaywalker had fully expected his wife to agree with him; she usually did. But she surprised him this time. Instead of sharing his annoyance over the impertinence of Barnett’s comment, she seemed far more interested in what had led to it. “So why did they lie about that?” she wanted to know.

  “You’re missing the point,” Jaywalker told her.

  Or was she?

  The thought would keep him awake another hour. In his annoyance at his client for botching the extra-credit question and ending up with a score of only 100 instead of 105, was it possible that Jaywalker himself had missed the point? Was the reason Investigator Bucknell had lied about the twelfth floor business more complicated than Jaywalker had figured?

  He’d learned a lifetime ago that cops lied. Hell, he’d been one of them, only on the federal payroll, so he knew it firsthand. But they didn’t lie indiscriminately. They lied selectively, to cover their own asses or those of their partners or team, to make an arrest stand up here or a search pass muster there. In other words, they lied only when there was something to be gained by lying—or something to be hidden.

  So what could they possibly be gaining by specifying that Alonzo Barnett had ridden the elevator to the twelfth floor, when he swore he hadn’t and they had no knowledge of where he’d actually gone? And what could they possibly be hiding by denying that he’d gone to the eighth floor instead, as he insisted he had?

  16

  All Cretans are liars

  “The People call Thomas Egan,” Miki Shaughnessey announced once the trial resumed Wednesday morning.

  For once, Jaywalker—whose organizational skills fell somewhere between extremely compulsive and certifiably insane—found himself at a total loss. He had no subfile for a Thomas Egan, no entry in his master index, no report of any sort. He’d never even heard of Thomas Egan.

  “May we approach?” he asked Judge Levine.

  Up at the bench, he took a page straight out of the Prosecutor’s Primer and asked for an offer of proof. Only he did it slightly less formally than Shaughnessey had with Kenny Smith.

  “Who the f—is this guy?” he asked. Actually said it that way, the F standing on its own, just in case Shirley Levine might have been in a rare testy mood.

  Shaughnessey was more than happy to comply. “Captain Egan happens to be the commanding officer of the Manhattan Narcotics Division,” she explained. “Just as he was in the fall of 1984, when this case was made. As such, he not only oversees all field operations but is the police department’s official custodian of all records pertaining to confidential drug informers. Mr. Jaywalker has suggested through his questioning that Clarence Hightower may have been acting as an informer.”

  “May have been?” Jaywalker interjected, before Levine silenced him with a withering stare.

  “He’s also insinuated,” Shaughnessey continued, “that the task force was remiss in failing to make a serious effort to identify the defendant’s source of supply. Captain Egan’s testimony will put both of those notions to rest once and for all.”

  “Mr. Jaywalker?” said the judge.

  Jaywalker could do nothing but stand there and shrug helplessly. The truth was, he’d never held out much hope that the whole twelfth-floor/eighth-floor business would fly with the jury, or that Hightower had truly been acting as an informer. But with nothing else to talk about, he’d been reduced to probing those possibilities. After all, the way the burden of proof operated, it wasn’t up to him to convince the jurors about anything on these points; it was up to the prosecution to dispel any lingering doubts as to the defendant’s guilt. Now Miki Shaughnessey was about to do just that, apparently, and in very impressive fashion.

  It didn’t hurt that Captain Egan was an extremely good-looking man with a thick mane of silver hair and a pair of piercing Paul Newman blue eyes. Or that he was well-spoken, with an economy to his words, no trace of an outer-borough accent, and none of the usual cop-speak that infected the testimony of so many of his fellow officers.

  Shaughnessey began her direct examination with a run-through of Captain Egan’s background and responsibilities within the police department. It was hard to tell which was more impressive. At one time Egan had aspired to be a priest, but the violent murder of a younger brother had steered him toward law enforcement. There he’d risen steadily through the ranks to his present position, accumulating a long list of medals, awards and commendations along the way.

  Only when he sensed that Shaughnessey was done with the preliminaries and about to get down to business did Jaywalker pick up his pen and get ready to do some serious note-taking. By sitting back during the résumé portion and trying to look mildly bemused, it had been his hope to suggest to any jurors looking his way that this was nothing but window dressing that had no real relevance to the case. The problem was that no jurors had been looking his way. All eyes were glued to Thomas Egan’s silver hair and blue eyes, just as all ears were attuned to his rich baritone voice.

  Then, just when Jaywalker was prepared for the worst, Miki Shaughnessey surprised him again. “At this point,” she told the judge, “I think it might be best if we were to approach the bench.”
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br />   “Come up,” said Levine.

  Once both lawyers and the court reporter had formed a semicircle in front of the judge, Shaughnessey explained that she had an application to make. “Captain Egan is about to name and discuss a highly valued confidential informer of the NYPD. In order to protect that informer from public exposure and possible retaliation, the People ask that the courtroom be cleared and the door locked for the balance of the witness’s testimony.”

  Jaywalker was about to oppose the application, but Levine silenced him with a raised hand. Then she stood back and addressed the jury.

  “I’m sorry,” she told them, saying the words as though she truly meant them. “But something has come up that requires me to confer with the lawyers at some length. I know it’s still early, but I’m going to have to excuse you for twenty minutes or so. Go have a cup of coffee, or take a walk around the block. Don’t discuss the case. Don’t speculate as to what we’re talking about. Just be back by eleven o’clock. Okay?”

  She was answered with a chorus of sixteen “Okays” from the twelve regular jurors and the four alternates. Jaywalker forced back a smile. If all judges treated people the way Shirley Levine did, jury duty might cease to be thought of as a pair of four-letter words.

  As he pivoted to walk back to his seat, Jaywalker got another surprise. During the colloquy at the bench, someone had quietly slid into Miki Shaughnessey’s chair at the prosecution table. It took Jaywalker a second to recognize him, but recognize him he did. Staring back at him was Daniel Pulaski, the assistant district attorney who’d had the case originally, before handing it off to Shaughnessey. Jaywalker, never a fan, gave Pulaski a perfunctory nod. As far as he was concerned, the man was a lowlife, a rarity in an office pretty much filled with decent people. Not only that, but he was nowhere near as good to look at as Miki Shaughnessey was.