Bronx Justice (19 page)

A
ny threat to Jaywalker's ego ended promptly at ten o'clock Monday morning. Pope announced that he had the “suspect” in his office, for Jaywalker to view and interview, if he wished. He added that he was certain the man wasn't the rapist and thought Jaywalker would agree as soon as he saw him. Together they walked down to his office, prosecutor and defender. Allies for a moment, but about to become adversaries again.

The young man did in fact look something like Darren. He was a light-to medium-skinned black man, about Darren's height, and slightly heavier. He'd been told why he was being picked up, and he'd agreed to come in voluntarily, without protest. And the reason was plain to see. On the man's right forearm was a prominent tattoo, an elaborate serpent-and-sword affair that could hardly have been missed by the victims of a man wearing a short-sleeved shirt. Pope said he'd double-checked with his witnesses to make certain, and none of them recalled a tattoo. And it wasn't new, be
cause a check of the man's criminal record had turned up a 1974 arrest, complete with a description that included the tattoo. As to what the man had been doing “acting suspiciously” in the area, he had a logical explanation for that, too. But by that time, Jaywalker was no longer listening.

He felt like he'd been kicked in the gut. Here it was, ten o'clock in the morning, and already he was totally exhausted. He barely heard Pope asking him whether he wanted to pursue the matter further. The second time he was asked, he shook his head slowly, then followed Pope back to the courtroom. Somewhere along the way, he managed to thank him for trying.

Back in the courtroom, Jaywalker's gratitude quickly evaporated when Pope announced that he intended to call the young man as a witness. He wanted to demonstrate to the jury just how hard the district attorney's office had worked to insure that they had put the right man on trial.

Jaywalker all but exploded. Making sure they were trying the right man was one of the duties of a prosecutor, he argued, and Pope deserved no extra credit in the eyes of the jury for doing his job. It was Darren Kingston who was on trial, not the Bronx County District Attorney's office, and calling the young man served no legitimate purpose whatsoever.

For once, Justice Davidoff sided with Jaywalker. Pope seemed so surprised and rebuffed by the ruling that Jaywalker found himself reevaluating his adversary's motives. He began to wonder if Pope had looked upon this “other man” business all along as nothing but an opportunity to do a little grandstanding and win some points with the jury.

To this day, he really doesn't know.

 

Finally accepting the judge's ruling, Pope indicated that he was ready to proceed with his rebuttal case. It was close to eleven o'clock by the time the jurors were brought in, no doubt wondering what surprise was in store for them next. But the surprise was to be Jaywalker's.

Pope called Tania Maldonado.

Jaywalker was on his feet asking to approach the bench before the witness made it through the door. There he reminded Justice Davidoff that Tania Maldonado was one of the victims whose case he himself had ordered severed, to be tried separately. Now Pope was trying to bring in Miss Maldonado—and presumably Elvira Caldwell, as well—to rebut Darren's testimony that, except for one visit with John McCarthy, he hadn't been in the Castle Hill area in years. And Pope was seeking to do it by placing Darren there on August 17th and September 5th, the dates of the Maldonado and Caldwell attacks.

Pope argued that Jaywalker had “opened the door” by putting the defendant on the witness stand and having him deny his presence in the area. But it had been
Pope
who'd elicited the denial, Jaywalker told the judge, through his own questions on cross-examination. That amounted to setting up a “straw man” for patently impermissible rebuttal. Jaywalker was shooting from the hip a bit here, making up his argument as he went along. But Pope's tactic struck him as yet another in a series of low blows. If permitted to get away with what he was proposing, Pope was now going to be allowed to parade two more victims in front of the jury—when the judge had already ruled that the unfair prejudice from that would be so great that it would deprive the defendant of a fair trial.

Pope acted as though he was surprised by Jaywalker's objection. All he intended to do, he assured the judge, was to ask each witness in turn if she'd seen the defendant in the area on a particular day. He didn't plan on going into what had happened.

Jaywalker pointed out to Justice Davidoff that permitting Pope to ask these other two victims
anything
would put the defense in an impossible position. If Jaywalker chose to cross-examine them as to their ability to meaningfully identify Darren, all the circumstances of their confrontations with him would come out, including the fact that they, too, claimed to have been among his victims. When the judge had ruled that that was too much for a single jury to handle, what sort of relief had he meant to give the defense? A trial where Jaywalker couldn't possibly put his client on the witness stand to deny his guilt?

Again a sports metaphor came to his mind. Watch a baseball or basketball game for a while. The umpires and referees do a terrific job. But every so often, they blow a call, whether it's a ball versus a strike, or a defensive foul versus an offensive charge. And the fans—and these days the miracle of instant replay—are quick to let them know. So what happens a minute or two later? The
payback call,
that's what. The same official makes an equally bad call, only this time against the team that unfairly benefited from the first one. Moral? It all evens out in the end.

Now, as Jaywalker heard Justice Davidoff ruling against him,
payback
came to mind. Pope would be allowed to ask the two additional victims what he proposed. Jaywalker could cross-examine or not, as he chose. But if he did, the judge explained, then both sides would be free to explore the full circumstances of the incidents.

But if this was indeed payback for the earlier call, in which Justice Davidoff had refused to allow Pope to call the “other man” only minutes ago, didn't the judge realize how different the two matters were? The first had been a no-brainer;
of course
Pope had no right to show how thorough his office was. But this second ruling—allowing Pope to set Darren up during cross-examination, just so he could bring in victims three and four on rebuttal—was nothing short of devastating to Darren's chances of getting a fair trial. It was tantamount to correcting a trivial ball-or-strike call by saying a game-ending home run hit by the other team the following inning had landed in foul territory.

As a last resort, Jaywalker demanded a Wade hearing as to the identifications of the two rebuttal witnesses, reminding Justice Davidoff that he'd been deprived of one only because of the severance. But here again, the judge said no, unless Jaywalker were to commit in advance to cross-examining the witnesses. That caveat struck Jaywalker as bordering on the bizarre. If a witness is going to point out a defendant at trial, that fact alone entitles the defense to explore, in the absence of the jury, any prior identifications—lineups, photographs, whatever—that the witness has previously made of the defendant. Tania Maldonado, Jaywalker knew for a fact, had been one of the three victims who'd come across Darren's photo together and had subsequently selected it from an array. Who knew what prior identification procedures Elvira Caldwell had been put through?

But the judge had made his ruling, and he made it clear that he wasn't about to change it. Jaywalker thought about
his options for a moment, but only a moment. There was simply no way he could open up the trial to two more incidents. Better to highlight the impact of Justice Davidoff's ruling by declining to cross-examine the additional victims. That way, at least, there would be a nice, clean issue preserved for appeal, in the event of a conviction. And that event was suddenly looming larger than ever.

Jaywalker told Justice Davidoff that until he'd heard the direct testimony of the rebuttal witnesses, there was no way he could state with honesty whether or not he intended to cross-examine them. With that, the judge denied his request for a Wade hearing and told Pope he would be permitted to proceed as he wished. Jaywalker sat down heavily, feeling as though he'd taken a knee to the gut, or perhaps slightly lower.

Tania Maldonado was finally permitted to enter the courtroom. Jaywalker recognized her as one of the two young women who'd been standing with the detectives last Thursday. The other one, of course, must have been Elvira Caldwell. The jurors, who hadn't seen or heard anything for four days now, swung their heads toward her in heightened anticipation. What they saw was yet another young woman, very young, very pretty—and very white.

Jaywalker sat back, took a deep breath, and steeled himself for the worst. It wouldn't help.

Pope zeroed in on August 17th. He established that the witness had been entering a particular building of the Castle Hill Houses sometime in the early afternoon. He had her point out the building on his chart, for the jurors to see.

Without a moment's hesitation, Tania Maldonado pointed directly at Darren.

There didn't have to be. In deliberately using the words
who was with you,
rather than
whom you saw,
Pope had conveyed to the jury the full meaning of his rebuttal case. Now, as Jaywalker stood to question this witness whom he didn't dare question, he felt as though he was carrying an extra five hundred pounds on his shoulders.

Jaywalker quit right there, before getting into real trouble. But he knew there was no way the jury could make any sense of her testimony, other than to conclude that she had to have been a third victim.

With a fourth to come.

As before, Pope had the witness give her address and then locate it on the diagram for the jury. It, too, was in the Castle Hill project.

And just as Eleanor Cerami had, just as Joanne Kenarden had, and just as Tania Maldonado had done only minutes earlier, Elvira Caldwell pointed her finger directly at Darren Kingston.

Jaywalker brought out, as he had with the previous witness, that Miss Caldwell hadn't seen the man before or since. Short of questioning her about the incident itself, he simply couldn't think of anything else to ask her. Even an innocuous “And yet you can say you're sure it's him?” would have flung the door open for Pope to come back on redirect and ask her how close she'd been to him, where they'd been, how long they'd been there, what had been going on, and what it was that caused her to remember him so well. That, of course, was the catch-22 of Justice Davidoff's ruling.

So Jaywalker could do nothing but give up at that point and sit down. That, and pick up a stray paper clip, pry it open and dig one end of it beneath his thumbnail until the blood ran bright red.

Pope announced that he had no further rebuttal witnesses and rested once again. The judge swung his gaze to the defense table. Jaywalker leaned over toward Darren
and muttered under his breath, “Fuck me if we're going to end on that note.” It came out a little louder than he'd planned. Or maybe not. At that point, he didn't much care.