Bronx Justice (11 page)

So you're pretty much left to guess, assuring yourself as you do so that if the process isn't exactly science, it's certainly art. Or that if it isn't actually art and is only guesswork, at least it's
informed
guesswork. And finally, that even if it isn't informed at all and is actually totally blind, well, when it comes right down to it, you're a pretty good guesser.

But jurors weren't cards. They were human beings, with all humanity's attendant foibles and frailties. And the jurors that Pope and Jaywalker would settle on would hold Darren Kingston's life in their hands. They would have the power to walk him out the courtroom door, a free man, his nightmare behind him. In as long as it takes to speak two words, they could restore his entire world: his marriage, his job, his good name, his dignity.

Or they could send him to state prison for the next half of a century.

So if it was nothing but guesswork, let the guessing begin, thought Jaywalker. To him, guessing was a concoction of relying upon stereotypes, playing hunches, employing a bit of magical thinking, looking people in the eye, flirting with the women, using sports analogies with the men, making judgments on the scantiest bits of information and hoping for the best. Over the twenty-some years to follow, his questioning of prospective jurors would evolve, but his selection process would pretty much remain the same. If ever you should happen to come across a lawyer who professes to have truly figured it all out—with or without the assistance of high-priced jury selection “experts”—save your money and run like the wind.

 

Darren Kingston's jury was finally picked on the end of the second day, a Friday. It had taken five rounds, over
the course of which twenty-four prospective jurors were peremptorily challenged—fourteen by Jaywalker and ten by Pope. Of the twelve who remained and were sworn in along with two alternates, seven were women, five men. The oldest was sixty-eight, the youngest thirty-nine. The average age was fifty-one. There were eleven whites and one black, a retired New York State parole officer. On a scale of 1 to 10, with 10 being Jaywalker's dream jury and 1 being his worst nightmare, he rated it about a minus 5.

The evidence hadn't even begun yet, but already Darren was in deep trouble.

Monday, February 25th

T
he jurors were brought into the courtroom and for the first time arranged in what would become their permanent seats for the remainder of the trial. Their numbers had already shrunk from the previous Friday. One of the alternates had called in sick earlier in the morning. The trial would proceed without her.

Justice Davidoff addressed the remainder of the jurors for about ten minutes, outlining their role in the trial, as well as his, giving them a few general instructions and explaining some basic principles of law.
Boilerplate stuff,
lawyers call it. Then he called upon Jacob Pope to make his opening statement.

Pope spoke for an even shorter time than the judge had, and it, too, was standard stuff. He made the usual observation that it was his duty to open on behalf of “the People,” a phrase he would use as persistently as Jay
walker would avoid it. He compared his opening to the table of contents of a book, something every prosecutor feels compelled to do. The trial itself he likened to a jigsaw puzzle, with various pieces contributed by different witnesses. At the end, there might be a piece missing here or there. But, he assured them, there would be more than enough for them to recognize the true picture that emerged. Next, Pope read the indictment, at least those counts that hadn't been severed out, word for word. He told the jurors that they would be hearing the testimony of Eleanor Cerami and Joanne Kenarden, as well as that of other witnesses. Then he thanked the jurors and sat down.

Unlike the prosecution, the defense, with no burden to prove or disprove anything, has no obligation to open. Jaywalker's Legal Aid training had taught him to remain silent, or, as one of his more colorful female colleagues was fond of saying, to “waive my opening in front of the jury.” The thinking was, don't commit yourself to a particular line of defense before you have to, and never tell the jury you're going to prove anything, lest you fail to deliver on your promise.

Over the years, Jaywalker would come to completely repudiate those bits of wisdom. As he would hone his trial skills, perhaps the biggest change he made would be in his approach to the opening statement. Today, he considers it a major weapon in his arsenal. Dispensing with the usual formalities of “May it please the court,” “Ladies and gentlemen of the jury,” or even “Good morning,” he launches directly into a narrative account of the way things really happened, according to the defendant. “Darren Kingston woke up on the afternoon of September eleventh and went to work, as he always did.” The jurors would listen, riveted,
as though they were hearing actual testimony. More than any other change he's made in the way he tries a case, Jaywalker credits this one for the dramatic rise in the number of acquittals he's recently won.

But that was the twenty-first-century version, modified and perfected over the years. This was 1980, and he still had much to learn.

He cautioned the jurors not to make their minds up after hearing the first few witnesses. He told them to refrain from drawing conclusions until all the evidence was in, hinting—without coming right out and saying—that there would be a defense case, and they should suspend judgment while they waited to hear it. He sat down barely three minutes after he'd begun.

Looking back at his opening statement years later, Jaywalker would be forced to give it a failing grade, a flat-out F. It was a brief, cautious, ultraconservative opening, calculated not so much to help the defense as to avoid hurting it. And therein lay the fault. Jaywalker finds a good analogy, as he tends to do these days, in the world of sports.

A football team is clinging to a slim lead late in the game. The coach orders his pass defenders to drop back deep. The strategy is to surrender the short gain, while preventing the long one at all costs. There's even a widely used term for it, the
prevent defense.
Its weakness, of course, is obvious. A clever opposing team will exploit it with a rapid series of short gains, marching down the field and into the end zone. Which is why its critics say that the only thing the prevent defense really prevents is winning.

Jaywalker had deliberately chosen to make a
prevent defense
opening statement. In an exercise of caution, he'd
passed up a golden opportunity to immediately go on the offensive. That he was simply doing what he'd been taught to do, what ninety-nine percent of his colleagues would have done in his place, was no excuse.

Jacob Pope called his first witness.

 

Eleanor Cerami's tinyness must have struck the jury as soon as she entered the courtroom. To Jaywalker, she seemed even more frightened than she'd been at the hearing. Her “I do” when sworn in was all but inaudible.

Pope began his direct examination by bringing out that Mrs. Cerami had two children, one six years old, the other seven months, and that she and her husband were separated. What the jury wouldn't learn was that it had been the rape that had led to the separation, a phenomenon that is unfortunately as common as it is disturbing.

Pope then produced a large two-dimensional diagram of the Castle Hill Houses and offered it into evidence. Jaywalker stated that he had no objection. Because he didn't like jurors to get the impression that he was trying to keep things from them, he made it a habit to move to exclude evidence before trial, whenever possible. Once the jury was present, he did his best to welcome whatever was being offered. In so doing, he hoped to leave the impression that he was open and fair-minded, unconcerned about technical rules, and not the least bit threatened by the evidence about to come in. Lastly, the strategy also helped him buy some credibility with the judge, who would learn that on those occasions when Jaywalker
did
object, his points were usually well taken.

Pope had Mrs. Cerami point out her particular building on the diagram. Then he got down to business.

With that introduction, in a voice barely above a whisper, Eleanor Cerami began describing what had happened to her that day. She'd been coming back from the cleaners. She'd entered her building and was standing in the lobby, waiting for the self-service elevator. She'd noticed, if only barely, a young black man, who also seemed to be waiting.

When the elevator arrived, she'd stepped on, followed by the man. She'd pressed her floor, twelve. The man had pressed ten. There'd been no one else on the elevator. When they reached ten, the man had stepped off. Then he'd turned around and gotten back on. Only now he'd been holding a knife. He'd told her to be calm, not to panic or scream. The door had closed, and they'd continued up to twelve. But when the door opened there, he wouldn't let her get off. The door had closed again, and they'd ridden back down to ten.

Pope interrupted the narrative and asked Mrs. Cerami to describe the knife. Except for his questions and her answers, the courtroom was utterly silent.

Back down on the tenth floor, the man had led her off the elevator, holding the knife against her back. He'd taken her through a door, into a stairway and up half a flight of steps, stopping between the tenth and eleventh floors. There he'd reached up and unscrewed a bare lightbulb until it had gone out. The stairway had darkened some, but she'd still been able to see the man pretty well.

She described how the man had unzipped his pants and exposed himself, and forced his penis into her mouth as she'd knelt in front of him. Finally, gagging, she'd stopped and said, “I can't anymore.” And he'd said, “Okay, that's enough.”

Pope pushed on with his questioning.

She went on to describe how the man had left, and how she'd gotten dressed and run to her apartment. Each time
she paused to take a breath, the courtroom was stone-cold quiet. Jaywalker shot a sideways glance at the jurors once or twice. Had he been asked to describe their reactions, the word that would have come to mind was
cringing.

Pope wasn't finished with Eleanor Cerami. He had her back up to repeat that the lighting had been good enough for her to see the man clearly. He brought out that they'd been face-to-face much of the time, only inches apart. He drew from her the fact that she'd been with the man a good fifteen or twenty minutes. He had her describe the clothing he'd been wearing: a knitted, close-fitting, short-sleeved shirt, jeans—
dungarees
was the actual word she used—and dirty gray sneakers.

Then Pope lowered his voice dramatically.

Eleanor Cerami turned toward the defense table and pointed directly at Darren Kingston. “Right there,” she said.

Still Pope pushed on. He had his witness look at a full-body photograph taken of Darren at the time of his arrest, so that she could point out the sneakers he was wearing—the same ones, she stated, that he'd worn when he raped her. Asked to compare how the defendant looked in court to how he'd appeared back in August, she said he was thinner now, and neater.

Pope questioned Mrs. Cerami about her actions follow
ing the incident. She'd run first to her apartment, then to a neighbor's, where she'd begun screaming and crying. She'd phoned her mother, then a friend, who had called her husband. Later that afternoon, the police had shown up and spoken to her. Then her husband had come and taken her to the hospital to be examined.

Next Pope wanted to know about Mrs. Cerami's recent pregnancy. She testified that she'd given birth at the end of June, some six weeks before she'd been attacked. And she stated that, except for the rape in August, she hadn't had intercourse during the period between then and the trial.

Pope moved on to another area.

Jaywalker took notes furiously. This couldn't be the incident Pope had warned them about, shortly after Darren's release on bail. He'd had Darren check that one out, and—if they were right about when it had occurred—it was possible that Darren had been at his job at the post office at the time. But now Pope seemed to
be asking about a different occasion, one back in August, prior to Darren's arrest.

Had there indeed been another, earlier sighting of Darren, after the rape but before his arrest? Or was Cerami simply mistaken about how soon she thought she'd seen her attacker again? And was Pope as surprised as Jaywalker was? Or was he now trying to take advantage of the situation and move the sighting from September back into August, in order to preempt any alibi Jaywalker might have for it?