Guilty as Sin

by Joseph Teller

  But look at him was apparently something Jaywalker was going to have to do. As soon as the jurors had filed out of the courtroom, it was Pulaski, and not Shaughnessey, who rose to address the judge and make the case for sealing the courtroom.

  PULASKI: If it please the court, Captain Egan is here because I subpoenaed him. I did that out of an awareness of the People’s continuing obligation under Brady versus Maryland.

  Under normal circumstances, this would have sounded like nothing but good news to Jaywalker. Under Brady, the prosecution is supposed to promptly turn over anything that might reasonably be regarded as exculpatory—in other words, helpful to the defense.

  But these weren’t normal circumstances. First of all, this was the prosecution’s rebuttal case, and Miki Shaughnessey had already said that Captain Egan was there to put to rest any notion that the task force hadn’t tried hard enough to identify Alonzo Barnett’s source of supply, as well as any suggestion that Clarence Hightower was an informer. Beyond that, there was quite another reason for Jaywalker to be suspicious. Daniel Pulaski.

  So Jaywalker listened carefully as Pulaski spoke, hoping for the best, but fully expecting the worst.

  PULASKI: It has recently come to my attention that a witness called by the People earlier in this trial may have given answers that were less than a hundred percent complete. That witness, I have no doubt, was testifying in good faith and, to his credit, was doing his best to protect the identity of a confidential informer. But as a result of his testimony, the record as it now stands contains what I would characterize as a few minor inaccuracies. I subpoenaed Captain Egan so that we could correct those inaccuracies and set the record straight. However, in order to do that, it will be necessary for Captain Egan to name and reveal the cooperation of a highly valued confidential informer who continues to work with the police department in that capacity. For that reason, the People request that all persons not immediately involved in the trial be excluded from the courtroom during the balance of his testimony.

  Jaywalker couldn’t believe his ears. He would have loved to believe that the prosecution was about to admit not a few minor inaccuracies but a lie that was so huge as to be absolutely verdict-changing. That in spite of all their denials and assurances, in spite of that official-looking form Pulaski had shown him weeks ago, Clarence Hightower actually had been acting as an informer when he’d approached Alonzo Barnett. And if that was so, then it had been entrapment, and the case had just gone from a dead-bang loser to a toss-up.

  Which meant, of course, that it couldn’t possibly be true.

  Pulaski was up to something. He had to be.

  For confirmation, Jaywalker looked over at Miki Shaughnessey, suddenly reduced to the status of a spectator seated at the prosecution table. As soon as she caught his glance, she averted her eyes and devoted her full attention to playing with a paper clip.

  She was being shoved to the sidelines.

  And whatever witness had introduced the minor inaccuracies during the course of his testimony was being hung out to dry.

  “Mr. Jaywalker?”

  He looked back to the judge, who was evidently awaiting his response to Pulaski’s application.

  “The defense objects,” he told her. Then he followed up with a pretty good three-minute, off-the-cuff argument against closing the courtroom.

  Not too many years back, excluding the public for substantial portions of a trial was something done on a fairly regular basis. An undercover officer, an informer, a child or the victim of a sex crime was about to testify? Seal the courtroom. Standard operating practice. Then the Supreme Court, the real one, down in Washington, reminded everyone that under the Constitution a defendant was entitled not only to a trial but a public trial. Ever since, judges have been compelled to devise briefer and less restrictive alternatives than simply tossing everyone out and bolting the doors.

  Which was the point Jaywalker made, with some degree of success. He made it succinctly, without being overly pedantic about it, and then he sat down. Shirley Levine didn’t need him to teach her the law. She continued writing for a minute before looking up and speaking.

  “After full consideration,” she said, “I’ve decided that we’ll keep the courtroom open right up to the point where the witness is about to identify the informer. Then—” She looked from Pulaski to Shaughnessey and back again. “Which one of you is going to do the direct examination?” she asked.

  “I am,” they answered in tandem.

  “I am,” Pulaski repeated.

  Jaywalker watched Shaughnessey as she silently bent the paper clip back and forth. He could imagine the metal growing hot to the touch. Finally it broke. “Mr. Pulaski is,” she said.

  “Please let me know when we’re right at that point,” said the judge, “and we’ll ask the spectators to step out.”

  Ask, not tell.

  They don’t make judges like that anymore.

  Once the jurors were back in their places, the trial resumed. The judge introduced Daniel Pulaski to them and explained that he’d be conducting the balance of Captain Egan’s testimony for reasons they shouldn’t speculate about. Miki Shaughnessey fumed silently. But Jaywalker, as sorry as he felt for her unexpected benching, couldn’t dwell on it. He was about to hear Clarence Hightower branded an informer. Wasn’t he?

  PULASKI: Captain Egan, did there come a time when you learned that some slightly misleading testimony may have been given in this trial?

  EGAN: Yes, there did.

  PULASKI: And did you learn that from me?

  EGAN: Yes. Apparently an officer who testified earlier in the trial had some concerns and reported them to A.D.A. Shaughnessey. As I understand it, she in turn took them to you. And you called me.

  This was all improper testimony, as far as Jaywalker was concerned. Not only were the questions leading, but they called for hearsay. The right way to do it would have been to recall the offending witness and give him an opportunity to correct his misstatements. Still, there was a decision for Jaywalker to make, and make quickly. A good lawyer is someone who knows when to object. A really good lawyer is someone who knows when not to. And right now something in Jaywalker told him to keep quiet, that the ultimate payoff was going to be worth the see-what-good-guys-we-are preliminaries. So he let it go.

  PULASKI: Who was that officer, and what about his testimony may have been misleading?

  EGAN: The officer was Investigator Lance Bucknell, from the New York State Police. And the testimony in question was with regard to his following the defendant into a building located at 345 West 127th Street.

  Shit, thought Jaywalker, angrily enough that for a moment he worried he might have said it out loud. This wasn’t going to be about Clarence Hightower at all. This was going to be about something totally different. Something that would benefit the prosecution and end up doing absolutely nothing for the defense.

  Why should he have expected anything else from Daniel Pulaski?

  PULASKI: Exactly what portion of Investigator Bucknell’s testimony may have been misleading?

  EGAN: As I understand it, Investigator Bucknell testified that he got onto the same elevator as the defendant and saw the defendant press the button for the twelfth floor. That wasn’t entirely accurate.

  PULASKI: What actually happened?

  Again, this was all going to be hearsay, and Jaywalker could have kept it out had he wanted to. But not only was Egan going to tell the jurors that Bucknell had lied—or given slightly misleading testimony, to use his euphemism—he was going to tell them what had actually happened. What would the upshot be? Jaywalker had no way of knowing. All he could do at this point was tighten his seat belt and hang on for the ride.

  EGAN: What actually happened was that Investigator Bucknell made it into the building, just as he said. But by the time he did, the elevator door had already closed and the defendant was riding up in it. Bucknell watched the lights on the panel above the door and saw that the elevator stopped on the eighth f
loor. He left the building and reported that observation to his supervisor on the task force, Lieutenant Dino Pascarella.

  PULASKI: And what did Pascarella do?

  EGAN: Pascarella got in touch with me. He said he was concerned because it just so happened that he knew of a confidential informer who lived on the eighth floor of that particular building.

  PULASKI: And what did you do?

  EGAN: I have a master cross-index of all confidential informers involved in narcotics investigations with the NYPD. That means it can be accessed by name, nickname, address or telephone. I went to the list and conducted a search referencing 345 West 127th Street. And I got a hit. On the eighth floor was the apartment of an extremely high-value informer, someone who’d been providing the department with critical intelligence in major undercover operations for a number of years.

  The way he said it conjured up images of special ops capers in Vietnam or Cambodia. Which was no accident, Jaywalker knew.

  PULASKI: What did you do when you made that discovery?

  EGAN: I convened a meeting with Lieutenant Pascarella, Deputy Chief Finn Murphy—that’s my boss—and a detective named Jeremiah Yarborough. Yarborough was running the CI in question.

  THE COURT: Would you mind giving us that in English, Captain?

  EGAN: Sorry. Detective Yarborough was the department’s contact with the informer.

  THE COURT: Thank you.

  PULASKI: What was the result of that meeting?

  EGAN: It was decided that the identity of the informer had to be protected at all costs. He was that important. So Lieutenant Pascarella was directed to speak with Investigator Bucknell and have him sanitize his reports in such a way as to keep the eighth floor destination out of them. At the same time, he was instructed to do so without adversely prejudicing the rights of the target of the investigation, Alonzo Barnett, in any way.

  PULASKI: And did Bucknell do that?

  EGAN: He did.

  PULASKI: And that accounts for the fact that he told us in court that Mr. Barnett rode to the twelfth floor instead of the eighth floor?

  EGAN: That’s correct.

  Years later, Jaywalker would read in astonishment each time the Supreme Court upheld the State Secrets Act, not just permitting, but requiring, lower courts to throw out lawsuits whenever the federal government claimed that letting such suits proceed would compromise national security. Not that he’d be the only citizen to recoil at the notion. But thanks to what he was listening to right now, he’d be one of a precious few to experience a déjà vu moment. He would truly be able to say he’d been there, heard that.

  But if anything, this was even worse. Egan wasn’t merely suggesting that the authorities could avoid litigating an issue by making the naked assertion that it was too sensitive to talk about, he was advancing the proposition that committing perjury in open court during a criminal trial was acceptable. That it all came down to a balancing test of sorts, in which the end could justify the means.

  And the defendant?

  Tough shit.

  After all, the defendant was nothing but a two-bit dope dealer with a criminal record as long as his arm. How could he possibly stack up against an extremely high-value informer who’d been providing critical intelligence in major undercover operations for a number of years? And this nonsense about doing things in such a way as to not prejudice the defendant’s rights? While that must have sounded good to the jury, since when had it been left up to the police department to be the judge of that? Unfuckingbelieveable.

  Yet for the moment, all Jaywalker could do was shake his head in bewilderment and listen as Daniel Pulaski turned to the judge and said, “This might be a good point for us to take up my application again.”

  Once the jurors were out of the courtroom, Pulaski stated the obvious, that he was about to ask his witness to reveal the name of the informer. Judge Levine responded by saying that unless Jaywalker had something to add to his previous objection, she was prepared to close the courtroom.

  “You bet I have something to add,” said Jaywalker. “Based upon Captain Egan’s admission that there’s not only been perjury committed by a previous prosecution witness, but that the perjury was the result of a deliberate, concerted effort to mislead the court, the defense and the jury, I move to dismiss all charges against my client.”

  The judge turned to the prosecution table. “Tell me,” she said. “Did either of you know about this? Did you know, either in advance or at the time Investigator Bucknell testified, that he was telling anything other than the truth?”

  “Absolutely not,” said Miki Shaughnessey.

  “No,” said Daniel Pulaski.

  Jaywalker was inclined to give Shaughnessey the benefit of the doubt. Pulaski was a different story. Still, there was no way he could show that either of them wasn’t telling the truth.

  “If I may use a sports metaphor,” said Pulaski, “this is really a case of no harm, no foul. In no way has the defense been prejudiced by—”

  “Sit down,” Levine told him. “I’m frankly not interested in your sports metaphors. Mr. Jaywalker is right in characterizing this as a deliberate, concerted effort to mislead the jury. And if I thought for a moment that you or any member of your office was involved in the deception, I would grant the motion. That said, I’m not sure Investigator Bucknell’s lie rises to the level of perjury. Perjury requires that the lie be about some material fact. Can you convince me, Mr. Jaywalker, that changing where the defendant went, from the eighth floor to the twelfth floor, was a material misstatement?”

  Jaywalker spent the next five minutes on his feet, giving it his best shot. But the strongest argument he could come up with was that Bucknell’s lie may have led the jurors to disbelieve Alonzo Barnett’s testimony that it had been to the eighth floor, specifically to Apartment 805, that he’d gone. And if they disbelieved him on that point, they could well conclude that he’d lied about other things, as well. But as the judge was quick to point out, Egan’s testimony now supported Barnett’s version. And if that remained unclear to the jurors, Jaywalker was free to emphasize it on cross-examination and argue it on summation.

  “So,” Levine continued, “while I think some sanction against the People is warranted, I don’t find that the situation requires dismissal. Any suggestions short of that, Mr. Jaywalker? Such as an instruction that the balance of Bucknell’s testimony be regarded with skepticism?”

  “No,” said Jaywalker. For one thing, he couldn’t think of a lesser remedy. For another, he was afraid that anything less than outright dismissal might satisfy an appellate court without really accomplishing anything for the defense.

  “I’m willing to tell the jury that Investigator Bucknell may face departmental charges as a result of what he did.”

  “Absolutely not,” said Jaywalker. As he saw it, Bucknell was a patsy taking the fall for others. He’d done his job by originally reporting to Pascarella that he’d seen the elevator stop at eight. Then he was told to sanitize his testimony. Sanitize. Now he was being outed as a liar. The last thing Jaywalker wanted was for the jurors to feel sorry for him and return a conviction in an attempt to protect him from being disciplined.

  So in the end the judge did nothing.

  But Jaywalker had been around the block often enough to know that didn’t mean the incident had had no effect. The fact was, Shirley Levine was now pissed off at the prosecution, and rightfully so. Jaywalker knew that, and while there might be nothing he could do with it at the moment, sooner or later he was going to find an opportunity to turn it to his advantage—and Alonzo Barnett’s. That opportunity might come during cross-examination, summation, or even deliberations, should the jurors, for instance, have a question about what they should make of Egan’s testimony.

  But for now, all Jaywalker could do was fret.

  When they resumed, the spectator section was cleared. There was some complaining, but a run-of-the-mill drug case doesn’t exactly bring out the scalpers. Had there been reporte
rs present, one of them might have put in a call to his or her legal department. But there were no reporters present. Nothing about Alonzo Barnett’s case had been newsworthy up to this point, and nothing was about to be. The people who were most upset at having to leave were the four of five Jaywalker groupies, retired guys who magically materialized whenever he was involved in a trial.

  PULASKI: Captain Egan, would you tell us the name of the informer who at that time resided on the eighth floor of 345 West 127th Street?

  EGAN: Only if I’m directed to do so.

  Another cute stunt, this one no doubt choreographed by Daniel Pulaski.

  THE COURT: Consider yourself directed.

  EGAN: The informer’s name was Jackson Davis.

  PULASKI: Thank you.

  And with that, Pulaski sat down.

  As Jaywalker rose to cross-examine, he half suspected a trap. Why hadn’t Pulaski had Egan pinpoint the apartment Davis lived in? Was it something other than 805, as Alonzo Barnett had testified? But Jaywalker knew he couldn’t afford to be cautious at this point. Sometimes you tested the waters, gingerly dipping in a toe. Other times you sucked in a deep breath and dived in. For better or for worse, this was going to be one of those other times.

  JAYWALKER: Tell me, Captain Egan, does this master cross-index of yours include apartment numbers?

  EGAN: Yes, it does.

  JAYWALKER: So what apartment number did Jackson Davis reside in at 345 West 127th Street?

  EGAN: Apartment 805.

  JAYWALKER: Which just happens to be precisely where Alonzo Barnett said he went. Correct?

  PULASKI: Objection. Captain Egan wasn’t present during Barnett’s testimony.

  THE COURT: Yes, but I was, and the jury was. And Mr. Barnett did indeed say he went to Apartment Number 805. Next question, Mr. Jaywalker.

  JAYWALKER: You also said that your cross-index can be accessed by nickname. Correct?