Guilty as Sin

by Joseph Teller

Still, Jaywalker felt that meeting those tests would be the easy part, easy being a relative term. The hard part, perhaps the impossible part, was going to be convincing the jurors that, despite all the denials and despite his absence from the cross-index, Clarence Hightower had nevertheless been working with the Man.

  Which is why he’d spend the rest of the weekend working on his summation, not getting to bed until well after midnight Sunday. Why he’d awake bleary-eyed, why he’d cut himself while shaving, and why he’d end up wearing one black shoe to court and one brown one.

  But he’d be ready to sum up.

  19

  The key to the case

  Jaywalker was precisely one sentence into his summation Monday morning when it happened. As always, he’d dispensed with the silly formalities that all other trial lawyers seemed to feel obliged to start off with. There was no “Ladies and gentlemen of the jury” for Jaywalker, no “May it please the court.” Not even a “My client and I are indebted to you for the close attention you’ve obviously paid throughout the trial.”

  He’d started out on the right foot ten years earlier, winning acquittals in the majority of his trials at the Legal Aid Society in an era when he would have gone to the head of the class simply by winning one out of three. Judges, prosecutors and colleagues quickly branded him a natural. But the truth was, it was his years as a DEA agent that had prepared him for the work. Even as he’d learned to talk like a defendant, he’d also figured out how to think like a cop. By the time he arrived at Legal Aid, Jaywalker could pick up a written complaint and, in the time it took him to read it, know not only what was true in it and what wasn’t, but what had actually happened out there on the street.

  Yet even though winning more often than losing gained him respect and reputation, those things weren’t nearly enough for Jaywalker. The acquittals were certainly sweet, both for him and his clients. But each conviction would plunge him into the depths of depression. So the very next time out, he’d change something in his approach. And if the change worked, he stuck with it. They could be big things, these changes, such as alerting the prospective jurors at the earliest possible opportunity that the defendant had a criminal record. Or they could be little tweaks, like dispensing with the niceties and jumping right into the narrative with the first words of his summation.

  By the time of the Alonzo Barnett trial, Jaywalker had changed enough things in his repertoire that he was winning four out of every five cases he tried. Over time he’d manage to push that rate all the way up to nine out of ten, an absolutely unheard of statistic for a criminal defense lawyer.

  By the time he stood that Monday morning to face Alonzo Barnett’s jury, the Jaywalker Summation had already evolved from pretty good to absolutely riveting and was well on its way toward legendary. But the perfectionist in Jaywalker understood the hard reality that neither meeting nor exceeding any of those descriptives guaranteed success.

  Convictions happened, as he knew only too well.

  Earlier that very morning, in fact, he’d run into a friend, a fellow defense lawyer named Blackstone, while riding up to the fifteenth floor. Taking in Jaywalker’s blue suit, white shirt and conservative tie—and evidently unable to notice the contrasting colors of his shoes in the crowded elevator—the guy had asked if he was summing up.

  “Yup,” Jaywalker had answered.

  “What kind of case?”

  “Sale.”

  Blackstone had grimaced almost reflexively. “Well,” he’d said, “good fucking luck.”

  Translation? Because jurors invariably ended up believing cops, sale cases were all but unwinnable. Which might have been a good enough excuse for Blackstone, but not for Jaywalker. All but unwinnable was where they separated the men from the boys. All but unwinnable was Jaywalker’s briar patch.

  “It is a Monday, a Monday in September, perhaps twenty months ago this very day,” Jaywalker had begun, taking the jurors back with him to that fateful day when Clarence Hightower had first shown up on the stoop of Alonzo Barnett’s apartment building.

  And that was as far as he got.

  He never saw the court officer rise quietly from his seat and walk to the wooden partition that separated the well of the courtroom from the audience section. Nor did he hear the officer whispering to the man standing on the other side of the partition, ordering him to find a seat. Because Jaywalker had been standing directly in front of the jurors as he’d begun to address them, those things had taken place behind him, out of his field of vision.

  But he quickly became aware that as much as the jurors were trying to give him their undivided attention, something was distracting them. First one pair of eyes, then another, then five or six more, were looking past him and focusing on someone or something else.

  Almost reflexively, he turned to see what they were watching. There at the partition, a uniformed court officer was pressing one index finger to his lips while using the other to direct a tall black man toward an empty section of seats in the third row. But the man wasn’t obeying the officer’s instructions. Instead he was gesturing frantically in Jaywalker’s direction, trying to make himself understood.

  Which was right about when Jaywalker recognized the man. It was Kenny Smith, Jaywalker’s official unofficial investigator, who’d testified earlier in the trial.

  “Please excuse me,” Jaywalker told the jurors, turning and stepping away from them. Then, even as Shirley Levine reached for her seldom-used gavel, he raised a hand and asked if he might be permitted to approach the man. Which he did, without bothering to wait for her response.

  He quickly reached the partition and assured the court officer that he knew the man, and knew he wasn’t a threat of any sort. Then he turned his attention to Smith.

  “What are you doing?” he whispered.

  “I’ve got him,” Smith whispered back. “He’s here.”

  But there are whispers, and there are not-quite-whispers. And in Kenny Smith’s inability to contain his excitement, his reply fell squarely into the latter category, the sort guaranteed to draw a sharp rebuke from any librarian within a hundred yards. But on this Monday morning in Part 91 there were no librarians in sight, only a gavel-banging judge, a bunch of jurors and a few rows of spectators.

  “Who’s here?” Jaywalker asked Smith.

  “Hightower.”

  “Here here?”

  By way of an answer, Smith pivoted and pointed toward the front door of the courtroom, the one that led directly to the hallway just beyond it.

  “Do you need a recess, Mr. Jaywalker?” Judge Levine was asking.

  “No, Your Honor, no. What I need is to reopen the case so that one more witness can testify. The defense calls Clarence Hightower.”

  “Objection!” shouted Daniel Pulaski. “He can’t do that. He’s already rested. It’s too—”

  “That’s enough,” barked the judge. “Everyone be seated. Now. That includes both lawyers and the gentleman standing at the rail. All of you.”

  Kenny Smith mumbled “Sorry” and found a seat. So did Pulaski and Jaywalker. But there was still an audible buzz in the courtroom that refused to die down.

  “Quiet,” ordered the judge.

  The buzz complied.

  As she turned to face the jurors, Levine looked positively pained. “Please forgive us once again,” she told them. “But I’m afraid we’re going to have to excuse you while we sort this all out. I’m truly sorry.”

  In the twenty-minute argument that followed, Jaywalker formally asked permission to reopen his surrebuttal case in order to put Clarence Hightower on the stand. “He hasn’t been available until this very moment,” he explained. “And he’s the one person who’s in a position to tell us whether he was actually cooperating or not. The interests of justice demand that we hear what he has to say.”

  Pulaski was equally fierce in his opposition. “Both sides rested,” he pointed out. “Then we had rebuttal, followed by surrebuttal. After that, both sides rested again. At some point
the evidence has to come to an end, Your Honor. Enough has to be enough already.”

  Shirley Levine spent a lot of time listening to the arguments and trying to balance the equities. In the end, the clincher for her wasn’t Clarence Hightower’s unique ability to clear things up, or that the interest of justice demanded that he be given an opportunity to do so. Nor was it the fact that both sides had rested, then rested again. It wasn’t even that the evidence had to come to an end, or that enough had to be enough already.

  No, the clincher was the fact that Jaywalker had already begun delivering his summation.

  “It turns out the case law is quite clear,” said Levine. “I have the discretion to permit either side to reopen the evidence for good cause and in the interest of justice, even after both sides have rested. Even after rebuttal and surrebuttal and rerebuttal. But once closing statements have begun,” she said, glancing up from a law book her law clerk had hastily retrieved and handed her moments earlier, “that discretion comes to an end.”

  Jaywalker continued to press the point. He happened to know the case the judge was reading from. Knew it by name, in fact. He tried his best to convince Levine that it was distinguishable on its facts. “That case concerned an application to visit a crime scene,” he pointed out. “The lawyer hadn’t requested it until he heard his adversary say something during his summation. This situation is totally different. Here a previously missing witness suddenly shows up just as summations are beginning. Not only that, but he’s ready, willing and able to testify about something absolutely crucial.”

  “I’m sorry,” said the judge. “But unless both sides consent to reopening, I’m not going to permit it. Mr. Pulaski?”

  “The People strenuously oppose the application to reopen.”

  “Then that’s my ruling, Counsel. And you have an exception, Mr. Jaywalker.”

  Meaning that in a year or two, after the conviction and the sentencing, long after Alonzo Barnett had been shipped upstate to spend the rest of his life, Jaywalker could take up the issue with some appellate judge. Only to be told that the trial court had lacked discretion in the matter, and even if that wasn’t so, she’d been justified in acting as she had.

  “So what’s the key to this entire case?” Jaywalker asked the jurors once the trial resumed. “Better yet, who’s the key?”

  It wasn’t how he’d started summing up a half an hour earlier. But Kenny Smith’s interruption had changed things, prompted him to discard his notes and take a totally different approach. And from the expressions on the jurors’ faces, he knew he’d grabbed their attention with those opening questions, knew that the trial was his to win if only he could do it right.

  “Despite the fact that the case bears his name, it’s not Alonzo Barnett who’s the key. Sure, he’s the defendant and he’s important, and we’ll have plenty to say about him, but he’s not the key. Nor is Trevor St. James, or Dino Pascarella or Angel Cruz or Lance Bucknell or Olga Kasmirov or Thomas Egan. Nor is Kenny Smith, who so rudely interrupted us this morning. If we count them all, including those who testified a second time on rebuttal, we’ve heard a total of nine witnesses during the course of this trial. Yet not one of those nine holds the key. Not one of those nine witnesses can unlock the dirty little secret that lies at the very heart of this case.

  “But there is someone who can.

  “So who is that someone?” Jaywalker asked them. Only to be instantly rewarded by seeing the name form silently on the lips of several jurors.

  “That’s right. The key to this case is the tenth witness, the one who never got to testify. The key to this case is Clarence Hightower.”

  He paused for a moment, letting the notion sink in to those in the jury box who hadn’t realized where he was going.

  “Let’s take a look at what we learn about Mr. Hightower as the trial progresses.” His use of the pronoun we was a conscious one. He wanted them to make this journey together, the jurors and he, to arrive at the truth simultaneously—even though he himself had arrived at it some time ago.

  “We learn that Mr. Hightower is a career criminal, much like Alonzo Barnett. Only where Barnett’s record is for drug possession and sales to support his own addiction, Hightower’s record is one of predatory crimes. Crimes against property. Crimes against people. And while there came a time when Alonzo Barnett finally overcame his addiction, stopped committing crimes and began the never-ending process of redemption, Clarence Hightower stayed in the life. Still dealing, still scheming, still hustling.

  “Next we learn that not too many years earlier, the lives of Alonzo Barnett and Clarence Hightower converged inside the walls of Green Haven prison. And don’t let that nice bucolic name fool you. State prisons are terrible places where grown men stab each other, rape each other and kill each other. And there at Green Haven, because of circumstances partly his own fault and partly not, Alonzo Barnett immediately became a target, an inmate with a contract on him.

  “A man marked for death.

  “And when no one else would save him, Clarence Hightower stepped forward. He offered Barnett a job in the prison barbershop, and by doing that he saved Barnett’s life. I’m not speaking figuratively or metaphorically here. Clarence Hightower saved this man’s life. Literally saved it.

  “And from that fact, it’s tempting to think of Mr. Hightower as a Good Samaritan, a selfless individual who rode off into the sunset, asking nothing in return for his good deed.

  “Not so fast.

  “We learn more about Hightower, you and I. We learn that shortly after his release, he comes looking for the man whose life he saved. But not to celebrate, not for old times’ sake. No, we learn Hightower has a business opportunity for Alonzo Barnett, a drug deal. But Barnett wants no part of it. We learn next that Hightower’s not to be denied. Not only is he persistent, he’s creative. He tries to induce and encourage Barnett, first with the promise of money, then with the lure of drugs and next with a tale of personal woe. And remember those words, jurors. Induce and encourage. They’re important.

  “Still, Barnett says no. He’s clean now. He’s got a good job and an apartment of his own. He’s reestablished his ties with his young daughters. Six times he’s offered an opportunity to make some easy money and score some drugs. Remember that phrase, too, jurors. Offered an opportunity.

  “Six times Barnett says no to that offer. Six times he turns down that opportunity. Until the seventh time, when Clarence Hightower plays his ace and tells Alonzo Barnett that Barnett owes him this favor in return for Hightower’s having saved his life. And on that seventh time, Barnett finally succumbs to the pressure. He gives in.

  “But that’s not all we learn about Hightower. As the trial progresses, we learn, for example, that he’s greedy. Not only does he make money on the deals he convinces Barnett to get involved in, but he mysteriously ends up with some of the drugs, too. We know where he gets the money from. Barnett gives it to him. The drugs are a different story, something we’re left to wonder about. We know he didn’t get them from Barnett, because Barnett gave all the drugs he got to Agent St. James. How some of those very same drugs managed to end up in Hightower’s pocket later is anyone’s guess.

  “Or is it?

  “Next we learn that Clarence Hightower is one unbelievably lucky man. Because despite the fact that he played a pivotal role in the sales, introducing Agent St. James to Alonzo Barnett, he gets arrested not for felony sales but only for misdemeanor possession. Brought to court, despite his long record, he’s allowed to plead down to disorderly conduct, not a crime at all. Disorderly conduct. Fifteen days. Time served. Faced with a parole violation that normally would send him back to prison for years, he instead gets his parole terminated early.

  “Were all those things really nothing but dumb luck and happy coincidence? Come on, jurors, we’re New Yorkers. We weren’t born yesterday. We know what it means when somebody tries to sell us something that sounds too good to be true.”

  Jaywalker paused for a momen
t, not only to give himself a moment to rest, but to give the jurors a chance to think about where he was taking them. He’d told them that Clarence Hightower was the key to the case, but he hadn’t yet showed them how.

  Now it was time.

  “So what really happened in this case? We’ve been told a lot of things, you and I. But what haven’t we been told? What have the cops left out? What is the evidence telling us, even as two of the prosecution’s witnesses are trying their hardest to keep us from hearing it?”

  He walked to the defense table and retrieved Defendant’s Exhibits B and C, the two photos of Clarence Hightower, carried them back to the jury box and placed them on the wooden rail that was all that separated him from the jurors.

  “Dino Pascarella would have us believe that this case began with a phone call. He says it was an anonymous call, so we have no way of knowing who supposedly made it. He makes it a blocked call, so we won’t be able to know the number where it supposedly originated. And he makes it an unrecorded call, so we won’t be able to hear it. Anonymous, untraceable and unpreserved.

  “According to Pascarella, Clarence Hightower was a total stranger to the authorities when he showed up on Alonzo Barnett’s stoop. According to Pascarella, the first contact he ever had with Hightower was on the afternoon of October 5, 1984, moments after Barnett’s arrest, when Hightower walked up to Barnett and managed to get himself arrested, as well.

  “Lieutenant Pascarella is lying about that. And these two photographs, Defendant’s Exhibits B and C in evidence, tell us that loudly and clearly and beyond any shadow of a doubt.”

  Jaywalker held the photos up in front of him so the jurors could see them again. Even with them facing away from him, he was able to describe them in detail. Defendant’s C. The dated one. Taken at Central Booking later on, on the same day as the arrests. In it, a cleanly shaven Hightower, dressed in a faded blue denim work shirt. And Defendant’s B. The undated one. Showing Hightower with a three-or four-day stubble of a beard, this time wearing a gray sweatshirt over a blue T-shirt.