Bronx Justice (20 page)

Then he asked for a recess.

 

Outside the courtroom, Jaywalker told Darren he was going to put him back on the witness stand. He didn't even bother telling him what he was going to ask him. For one thing, he was too angry to talk, too angry to think straight. But there was no need to rehearse. So convinced was Jaywalker of his client's innocence that he knew there was simply no way Darren could screw up. He might not be the smartest witness who ever testified, or the most eloquent. But every last word he'd ever said about the charges against him was true. And nothing Jaywalker or Pope or anyone else might ever ask him could possibly trip him up, because he had nothing to hide, nothing to trip up over.

But if Jaywalker didn't want to talk, Darren did. “It l-l-looks bad, huh, Jay,” he said.

“Well,” Jaywalker admitted, “I don't like it. But right now, there isn't too much we can do about it.”

It was the truth. And Darren's rebuttal testimony a few minutes later would do little to erase the damage that had been done.

Pope asked no questions. It was his way of telling the jurors that Darren's denials were so self-serving that they didn't even need to be dealt with.

Jaywalker rose to announce that the defense was resting. He tried his best to sound triumphant, but he knew he wasn't fooling anyone. Justice Davidoff recessed until the afternoon for summations. Jaywalker sent Darren and his family to lunch, and headed for the library.

 

The summation, or closing argument, is generally considered the single most important part of any trial. As im
perfect as Jaywalker's courtroom skills were back at the time of Darren Kingston's trial, he was already accomplished in the art of arguing to the jury at the end of the case. Sure, there were better orators, lawyers with more years of experience in the trenches, more tricks in their bags and more booming voices. But summing up isn't just about emoting or drawing on experience or being clever, or even about which lawyer has the deepest, most resonant voice.

Summing up is about taking everything that happens during the course of a trial and making sense of it for the jury to see, understand and finally be persuaded by. Months before the first prospective juror walked into the courtroom where the case of
The People of the State of New York versus Darren Kingston
would be tried, Jaywalker had already been working on his summation. Even as Darren sat in a cell on Rikers Island, waiting for his father to come and post his bail, Jaywalker was creating a file with two words inked on the jacket. S
UMMATION
N
OTES
, it read. It had contained only a scribble or two back then. But as Jaywalker had learned more about the case, paragraphs were added, and then pages. John McCarthy's investigation had contributed facts, and those facts in turn had bred ideas. If called upon to do so, Jaywalker could have delivered his summation long before the trial began. That was how well he knew the case, and how well he knew he would argue it to the jury when the time came.

Then, as actual witnesses had begun taking the stand and testifying, as exhibits were admitted into evidence and stipulations read, the file grew thicker. And in every spare moment, Jaywalker was constantly reading it, reviewing it, tweaking it, until he knew everything that was
in it, forward and backward, inside and out. There were times when, driving home from the Bronx at the end of a trial day, he would catch himself trying out a phrase here, an expression there. Sometimes he would arrive home with no memory of the trip at all, save for what he'd been telling the jurors. That he survived the daily commute was more a product of providence or dumb luck than any concentration on his part.

It was the same with every trial, until finally, the evening before he expected to sum up, when his daughter was asleep, his wife smart enough to find someplace to hide, and the house was quiet enough, he would sit himself down at the kitchen table and work into the night, putting it all together. If he got to bed by two or three, he considered himself ahead of the game, knowing that pure adrenaline would get him through the rest of the day.

Although he could deliver an opening statement without notes—and always would, even as his openings grew over the years from perfunctory to protracted—Jaywalker didn't dare sum up without having something on paper in front of him. There was simply too much he needed to say, and the danger of omitting something important was too great to leave to chance. But he would never write out a summation word for word or anything close to it. Instead, he would reduce his notes to topics, and from there to key words. The blanks, which were anything but blank in his mind, he would fill in as he spoke. Jurors want to be persuaded, after all, not read to.

And as much as the process consumed him and drained him, Jaywalker absolutely loved it. For him, summing up was not only the most important part of the trial, it was by far the most exciting. It was every bit as intoxicating as it
was exhausting. It was Hamlet's
“To be, or not to be,”
Othello's lament, Lear's rage. It was Clarence Darrow, literally fighting for Leopold and Loeb's lives. It was Gregory Peck's closing prayer to the jury in
To Kill a Mockingbird:
“For God's sake, do your duty.”

But most of all, it was Jaywalker himself.

More than any other part of the process, the final argument represented Jaywalker's chance to inject himself into the struggle on a primal level, to stand up and place himself squarely between the jury and the defendant, and to say to them loudly and clearly, “Before you dare convict my client, you must come through me.”

So it became intensely personal, this business of summing up, and Jaywalker would have had it no other way. It was about acceptance or rejection. There were those who'd likened a trial to a search for the truth. They were as wrong as wrong could be. The truth was something that had happened long ago and far away, and could never be recreated in a courtroom. Not with all the American flags and In-God-We-Trusts in the world. A trial was a battle, a war, a struggle to the death. One side won, the other lost.

In Darren Kingston's case, that was truer than ever. Here was a young man whom Jaywalker believed—no,
knew
—to be innocent. Yet a quartet of honest witnesses had come into court with absolutely nothing to gain by lying and everything to gain by telling the truth. Each of them in turn had placed one hand on a Bible, then raised the other hand, and in a solemn voice had sworn to tell the truth, the whole truth and nothing but the truth, so help her God. And then they had.
Their
truth. The only thing was, they'd all been wrong. Darren knew that. His family knew
that. His lawyer knew that. But there were twelve people who didn't. Not yet, anyway. Now was Jaywalker's last clear chance to make them know that, too.

I
t was just after three o'clock when Jaywalker rose to address the jury. By the time he would sit down, it would be a little after four. Many, if not most, lawyers would have spoken longer. In the years to follow, Jaywalker himself would deliver many lengthier summations, including a three-and-a-half-hour personal longest in defense of a Korean merchant who set off a boycott in Flatbush. But that was a complicated case. This one, at least in terms of the issue, was a simple one. Either the evidence proved beyond all reasonable doubt that Darren Kingston was the man who'd raped Eleanor Cerami and Joanne Kenarden, or it didn't. And Jaywalker's appraisal of the jurors was that their collective attention span was limited. The last thing he wanted was to see them begin to fidget, yawn, glance at their watches and doze off.

He began in a conversational tone, reminding them of several predictions he'd made to them as early as jury selection, almost two weeks ago. Both victims had indeed been raped, he'd told them, and by the same man. Both had
had lengthy opportunities to observe their rapist. Both would point out Darren. And both would say they were absolutely certain. If the jurors chose to make their job quick and easy, the case could end right there. But the fact was, that was where the case began. Under the American system of justice, deliberations are conducted and verdicts are delivered not by witnesses, but by jurors. Jurors just like them.

Jacob Pope, in his opening statement, had compared a trial to a puzzle and had suggested that as the jurors got toward the end of it, they might discover they were missing a few pieces but that they would have enough to see the whole picture. Now Jaywalker picked up on the metaphor and challenged the jury to take a good hard look at the missing pieces with him, and try to make sense of them.

First, he told them, they needed to recall that both victims had described how the man had unscrewed the overhead lightbulbs. When he'd done so, he hadn't been wearing gloves or using anything else to do it with. Detective Rendell had come along later the same day and had removed a number of bulbs. All of them had been tested for the presence of latent fingerprints. In fact, only prints “of no value” had been found on them. Translated into plain English, that could only mean they'd tried to match them with Darren Kingston's prints and couldn't.

In fact, there was absolutely no physical evidence that pointed at Darren. Not one piece of scientific or medical proof. Not one sperm that could be shown to have come from him. Nothing found on him that connected him to the victims or to the crime scenes. No blood, no hair, no clothing fibers. No knife. Nothing, absolutely nothing.

Each of those things was what the prosecution might—in an attempt to gloss over and minimize their signifi
cance—call missing pieces. But there was more, much more. Far more significant than the pieces that were merely
missing
from the puzzle were the pieces left on the table that
didn't fit.

There was Darren's chipped front tooth. There was the scar that ran clear through one of his eyebrows. The victims spent fifteen to twenty minutes with the man who raped them. He was directly in front of them,
on top of them.
He spoke to them, and they to him, making eye contact. Yet neither of them ever saw a chipped front tooth or a scar clear through an eyebrow. Those weren't just missing pieces. Those were pieces the jurors had in front of them, and they were pieces that simply didn't fit in this puzzle.

Next, he told them, there's the right-handed or left-handed piece. Ordinarily, that wouldn't be a big deal. We all know that whether they're right-handed or left-handed, most people can perform tasks like holding a knife or unscrewing a lightbulb with either hand. So the fact that both witnesses say their rapist used his right hand to do these things is
suggestive
of right-handedness but hardly
conclusive.
But there's more. Mrs. Cerami is absolutely certain and absolutely specific in terms of what she remembers about the man, and here it is. He held the knife against her with his right hand, until it came time to unscrew the overhead lightbulb. And what did he do then? Did he reach up with his free left hand? No! He took the trouble of switching the knife from his right hand to his left, in order to free up his right hand to loosen the bulb. That, members of the jury, is the unmistakable signature of a right-handed person.

And Darren Kingston, this man here? We know for an
absolute fact that he's left-handed. How do we know it? We know it because he tells us, because his mother tells us, because his wife tells us, because his left-handed Phil Rizzuto glove tells us, and because even Mr. Pope tells us when he
stipulates
to the fact, conceding it to be true. So there's another piece of the puzzle that you have in front of you, another piece that
doesn't fit.

Jaywalker had a couple of bigger pieces that didn't fit, but ever mindful of the relay-race strategy, he wanted to save them for last. So he turned to the descriptions provided by the victims shortly following their attacks, when their memories were most vivid. Both, he said, had described a man five or ten years older than Darren, and twenty-five to thirty-five pounds heavier. Both now tell you that it's Darren, but he must have lost weight since then. But the fact is, he hasn't. He still weighs the same. Those things aren't missing,
they don't fit.

There was the shirt described by the victims. When the police had gone to Darren's home to arrest him, they'd looked through his clothing. No such shirt. Even his sneakers were of a different cut and color than those described by the victims. And the odor of alcohol on the rapist's breath. Even assuming that Darren had gotten off his shift at the post office and, instead of going home to sleep at nine or ten in the morning, had gone out to drink and rape, he didn't drink wine, the specific odor reported by Miss Kenarden. On those rare occasions when Darren did drink, he drank Seagram's V.O., a blended whiskey that smells nothing like wine.

Jaywalker took a step back. He told the jurors he didn't want them to get the idea that he was attacking the victims. They'd been raped. About that, there could be no doubt.
But they'd been raped by someone other than Darren, someone who wasn't in the courtroom today. “Who knows?” said Jaywalker. “Perhaps it was the man Yvette Monroe saw that day in Nedicks—”

“Nathan's,” corrected a juror.

“Nathan's, thank you.”

Jaywalker was elated. Not only were they listening to his every word, they were
helping
him. It was every lawyer's dream.
He had them.

He moved on to the geography of the case, how it would have taken Darren an hour or more to travel to Castle Hill by subway and bus. How Pope had tried to make that piece fit by showing that Darren had an uncle who lived near the project. But the defense had brought that uncle into court, Jaywalker reminded the jurors. Samuel Kingston recalled that the last time Darren had visited him was with the rest of his family, four or five Thanksgivings ago, and that Darren had no key to the place and never had.

It was time for the three biggest pieces of all, the
anchormen
Jaywalker would rely upon for a final kick to the finish line.

First, there was the stutter. The victims had been with their attacker for fifteen or twenty minutes. Both said he'd talked constantly. Yet neither one had reported anything remotely resembling a stutter, either to the police officers who responded to their homes, to Detective Rendell, to Jacob Pope or to the jury.

Darren stuttered. He always had; no doubt he always would. As was the case with his left-handedness, the jurors didn't have to take Jaywalker's word for it, or even Darren's word. “You have his mother's word,” he told them, “his wife's word, his boss's word. You have Detec
tive Rendell's word. You have a lifetime of speech classes. You have a draft card, with an official notation on it. But most of all, you know Darren stutters because you heard it with your own ears. And you know it's real.” He touched on Pope's theory, that the stutter only showed up during periods of stress and would have been absent during the rapes. “That,” said Jaywalker, “is nonsense, pseudopsychology.” Today, he would have used the phrase
junk science.
Or, if he was really on a roll,
bullshit.

The second huge piece that didn't fit into the puzzle was the fact—and it
was
a fact—that the rapist was circumcised. Again, Pope had tried to confuse the issue. He'd tried to get Dr. Goddard to say that it would be hard for an ordinary person to tell in the case of a penis that was erect. He'd even gone so far as to suggest that a man would pull back his foreskin, as some sort of attempt to
disguise
the fact that he wasn't circumcised. This from a man, mind you, who'd made no attempt whatsoever to hide his
face.
But Dr. Goddard had stood firm in his testimony. Not only was Darren
un
circumcised, his foreskin was long. And pulling it back would have been difficult and probably quite painful. “As to the business about the victims' only seeing their attacker's penis when it was erect,” said Jaywalker, “check the testimony. Joanne Kenarden said she saw his penis both when it was erect and
before it was erect
. So there's another piece that, no matter how you turn it, no matter how you try to twist it and squeeze it and reshape it,
it just doesn't fit
. Why? Because it's from some other puzzle. It's about some other man.”

Jaywalker was now down to the final piece: Eleanor Cerami's claim, no doubt true, that she'd seen her attacker a second time. The jurors could forget about a third time;
she'd been mistaken about that. How did they know? Because Detective Rendell had cleared it up for them, that's how.

Mrs. Cerami had testified that when she'd seen the man again, she'd been absolutely certain it was him. “In fact,” said Jaywalker, “she told you she was as certain about that as she was in pointing out Darren Kingston as the man who'd attacked her. Only she was wrong. And you and I now know that for a fact.

“Eleanor Cerami isn't sure exactly when she saw her attacker for a second time. She knows it was about nine-thirty in the morning, and she's pretty sure it was a Monday. What she knows for sure is that she got to a phone and called Detective Rendell right away. It turns out Detective Rendell wasn't in. It happened to be his day off. So all Mrs. Cerami could do was leave a message for him. Well, Detective Rendell got that message, and he got it the very same day. And
he
knows the date. It was September seventeenth, which was indeed a Monday. In fact, after returning Mrs. Cerami's call, Rendell phoned Mr. Pope to tell him about the incident. And when he phoned Mr. Pope, it was
still
Monday, September seventeenth. So there can be absolutely no doubt about the date, the day of the week or the time.”

Jaywalker paused for a moment. He liked leaving things for the jurors themselves to figure out. But this one was too important to leave up in the air. Dropping his voice so low that they had to lean forward to hear him, he posed the question that lay at the very heart of the case. “Where,” he asked them, “was Darren Kingston at nine-thirty in the morning on Monday, September seventeenth? It turns out he was at the United States Post Office, Gracie Station, on
East Eighty-fifth Street, in Manhattan. Miles away. Hours away.

“Once again, you don't have to take Darren's word for it, although by now you should. But you can take Delroid Kingston's word. You can take Andrew Emmons's word. You can take George Riley's word. You can take P. G. Hamilton's word. And if none of that's good enough for you, you can read the fact from an official United States Post Office document. It's in evidence. And it proves exactly where Darren Kingston was at the moment Eleanor Cerami was watching her rapist walk through her lobby.”

Jaywalker reminded the jury that, as defense counsel, he didn't have to prove or disprove anything. That was the job of the prosecution. Yet with that document, and all the circumstances surrounding it, he'd proved—and proved beyond any shadow of a doubt—that as horrible as the rapes had been, the wrong man was on trial.

He asked the jurors to put themselves in Darren's shoes for just a moment. For him, the case had begun the instant his mother had phoned him and told him the police were looking for him. “What does he do?” Jaywalker asked. “He waits right there for them. He accompanies them to the precinct, where, for the first time he hears that he's being accused of committing rapes that happened a month earlier. And his nightmare begins.

“He doesn't concoct some phony alibi for you. He doesn't ask his family to lie for him about where he was back on August sixteenth. He was home in bed, having worked the night shift, just as he did and does, five nights a week. But because he was home in bed alone, his nightmare continues.

“He pleads not guilty, and he asks for a trial. He asks
that twelve fellow citizens from the Bronx be drawn at random to judge him. He comes to court. Not in some fancy suit and tie, to impress you. No, he comes as who he is. A son, a husband, a father, a breadwinner. He brings with him three pitiful weapons and one absolutely magnificent one. The three pitiful weapons are his draft card, his sneakers and his Phil Rizzuto baseball mitt. The magnificent one is the truth.