Bronx Justice (3 page)

And that was only page one. The indictment went on to charge Darren with additional counts of first-degree sodomy, sexual misconduct, sexual abuse, assault against two of the victims, and criminal possession of a weapon—a knife—on each occasion. In all, there were twenty-three separate crimes charged. The only pieces of good news, if they could be called that, were that from the original five victims, it seemed now they were down to four who were willing to testify, and of those only two had apparently been actually raped; the other two counts were of attempted rape. Still, Jaywalker could do the math in his head: two completed rapes, each carrying a maximum sentence of twenty-five years, plus two attempts, worth fifteen each. Add them all up, and Darren was facing eighty years in prison.

The case was called in its turn, and Jaywalker accompanied Darren to the podium. The clerk asked how the defendant pleaded, and Darren answered, “Not guilty.” His voice was soft, but he didn't stutter. Perhaps he'd been practicing the words, having been told ahead of time by Jaywalker that he would be required to say them. Bail was ordered continued, and the case was adjourned for three weeks, to give the defense time to submit written motions.

Outside the courtroom, Jaywalker cornered Pope and asked him if he would consider giving Darren a polygraph examination. Pope raised an eyebrow as he seemed to think about it, but Jaywalker could see
Why rock the boat?
written all over his face.

Finally he said, “Let me run it by my boss.” Passing the buck, no doubt, not wanting to be the one to say no. “Oh, one other thing,” he added. “Tell your man he'd better keep out of the area up there.”

“What do you mean?” Jaywalker was puzzled.

“I mean this,” said Pope, in a tone even more serious than his usual humorless one. “I got a call from Detective Rendell the other day. He said one of the girls phoned him and said she'd seen the guy again, in her lobby. Rendell figured shit, maybe we've got the wrong guy locked up. He called me. I did some checking and found out your client had made bail.”

“When was this?”

“I don't know,” said Pope. “Beginning of the week, maybe. He was out before the weekend, right?”

“Right,” Jaywalker had to agree. It was true.

“Now understand me,” said Pope, his eyes narrowing. “This is a free country. I'm not telling your man where he's allowed to go and where he's not. But he starts intimidating my witnesses, I'll have him back in jail in an hour, and his family can see if they can make fifty
million
dollars. I suggest you tell him that.”

“I will,” Jaywalker said soberly. “She's sure it was him?”

“She's sure.”

Jaywalker didn't know whether to hate Pope for threatening them or thank him for the warning. Before he had a chance to do either, Pope turned and walked away.

Jaywalker lost no time in confronting Darren with what he'd just been told. He was about to read him the riot act for disobeying explicit instructions when Darren interrupted him. “Jay, you know that's not m-m-me she's talking about. I haven't been out of the house alone for one minute since I got out.”

Darren's family jumped to his defense, backing him up completely and persuasively. So Jaywalker sent them off
with homework assignments. Each of them was to take paper and pencil and write out everything they could remember about Darren's movements since his release on bail, as well as his whereabouts on the three days listed in the indictment, August 16th and 17th, and September 5th. Jaywalker instructed Darren to buy a pocket calendar and begin making detailed entries of his comings and goings each day, cursing himself for not thinking of it earlier. Then they set up an appointment at his office for Monday and parted ways.

Jaywalker headed for his car buoyed by a feeling of excitement. Admittedly, the indictment had been bad. Of the five victims, Pope had succeeded in getting four of them before the grand jury on short notice, and if he got the fifth, he could always go back in, have her testify and get a superseding indictment. Jaywalker's suggestion of a polygraph examination had met with fairly predictable skepticism, but at least Pope hadn't quite responded with a flat-out no. But by far the most interesting development had been the business about one of the victims claiming to have seen Darren in the lobby of her building since his release. For starters, Darren and the rest of the Kingston family insisted that he hadn't been out alone since Marlin had brought him home from Rikers Island. But even beyond that, it just didn't make sense. In the movies and on TV, the perpetrator invariably returns to the scene of the crime, blending into the crowd or lurking around furtively to watch the investigators at work. But in real life, having been unlucky enough to be arrested but lucky enough to have gotten out on bail, wouldn't he want to stay as far away as he possibly could?

It sure seemed that way to Jaywalker.

 

Monday's meeting produced very little. While Darren's recollection of his whereabouts since being released from jail was detailed and complete, mid-August was another matter. He'd been working nights at the post office, midnight to 8:00 a.m., to be exact. During the daytime, he was generally home alone, either sleeping or attending to chores. Charlene had been working days, and their son—whose name was Philip, but whom everyone called “Pooh”—was left in the care of Darren's sister, Janie, at their parents' house, the same house that was now the collateral on Darren's bail bond. Nobody had any specific recollection regarding the first two dates in the indictment, August 16th—when two of the incidents had occurred—and August 17th. But September 5th stood out a bit. That was the day after Labor Day, and therefore the day Janie's classes at school had resumed after summer vacation. So on that day, for the first time, Pooh had been left with a neighbor. Darren recalled having come home from work as usual, about 9:30 in the morning, and hearing Pooh crying next door. He'd called his mother and asked her if she thought he should go knock on the door. Inez had said no, that if he did that the woman would feel they didn't trust her, and that anyway, the child would have to get used to the new arrangement. Darren had reluctantly accepted the advice, stayed in his apartment and gone to bed.

“But it was
h-h-hard,
” he remembered.

It wasn't much to go on, but it was something. Jaywalker jotted a note to himself to include a request for the precise time of each of the attacks in his motion papers.

The meeting broke up. By that time, Jaywalker had fully succumbed to the Kingstons' habit of embracing at
each greeting and parting. He particularly enjoyed hugging Marlin. Each time he felt the rough stubble of the older man's beard against his face, Jaywalker was reminded of his grandfather, his father's father, whose whiskers had felt like sandpaper and left his young cheeks glowing bright red. So Marlin's hugs were extra-special.

God, these were good people! Born black in a country that too often tended to be kinder by far to whites, living in a borough that in those days got commonly compared to a war zone, often unfavorably, they'd managed to carve out a life for themselves. They got up and went to work or school, or sometimes both. They took care of their children. From modest salaries, they somehow saved enough to buy a home. They didn't seem to drink, use drugs, gamble, curse, get angry or do any of the other things that used to get so many of Jaywalker's Legal Aid clients into trouble so often. In many ways, the Kingstons epitomized that most overworked of all clichés, the American Dream. They lived honest, hardworking and productive lives, day in and day out. They didn't look to others to take care of them; they took care of themselves, and of each other. Now something terrible had happened to one of their number. Some outside force, not fully comprehensible in its awfulness and randomness, had suddenly reared up and threatened to destroy everything. Their reaction was as simple as it was immediate. Even as they'd reached out to Jaywalker for outside help, they'd drawn together even more tightly. They'd mustered their collective strengths, pooled their resources and drawn on their faith. That faith was not so much in a higher power as it was in the system itself. They trusted that the system, which they'd always believed in and lived by, would now protect them.

But the system, Jaywalker knew only too well, protected no one. The system was cold and impersonal. The system was all about budgets and payrolls, statistics and seniority, politics and patronage. When it came right down to it, in an adversarial contest that pitted a professional prosecutor against a designated defender, a person could be protected only by another person. And for better or for worse, because of the absurd accident that Inez Kingston happened to work in the same Welfare Department office as Jaywalker's sister-in-law, he had become the person charged with the responsibility of protecting a young man and, with him, the rest of his family, born and unborn. It was a responsibility that Jaywalker both wanted and didn't want, one that he relished even as he loathed it, and one that was already waking him up each morning and accompanying him to bed each night.

In the short space of a month's time, it had become a responsibility that scared the living shit out of him.

J
aywalker busied himself preparing motions.

The days of the computer had not yet arrived, at least for a seat-of-the-pants solo practitioner like Jaywalker. That meant typing out a set of papers the old-fashioned way, on a trusty Remington, the kind that fit into a square black box and came without a cord, much less a battery. He moved for suppression of any statements that might be attributed to Darren as admissions or confessions, exclusion of any identifications of him that might have been tainted by suggestive police procedures, and a severance that would divide the case into four separate trials instead of one. He asked for court-ordered discovery of police reports, medical records, photographs, artists' sketches and the like. He demanded particulars regarding the precise date, time and place of each of the crimes charged. He made copies, served and filed them, and waited for Pope's written response.

Next Jaywalker contacted a private investigator. He called John McCarthy, a former NYPD detective who
would go on to do work for F. Lee Bailey, among others. McCarthy was bright, capable, and would make a good appearance on the witness stand, if his testimony were needed. Jaywalker had him come to the office to meet Darren, and the three of them went over the facts of the case in as much detail as they knew them. He instructed McCarthy to use his contacts in the department to gain access to whatever police and housing authority records he could. He told him there would come a time when he'd want him to see if the victims would talk with him. Finally, Jaywalker asked him to spend some time in the Castle Hill area of the Bronx, where the attacks had taken place, on the outside chance that he might be able to locate the real rapist, assuming it wasn't Darren. At that suggestion, McCarthy looked up from his notepad and stared at Jaywalker as though he were on drugs.

Jaywalker looked away.

 

Things slowed down. And Jaywalker had no complaint about that. A speedy trial, which is a defendant's constitutional right—and these days his statutory right, as well—is in fact a defendant's worst enemy. Time is his ally. Time for his lawyer and his investigator to do their jobs; time for the victims to grow less vindictive and more forgetful; time even for another attack to occur while the defendant's presence elsewhere could be documented. And with Darren out on bail, time also brought the opportunity for him to get back to work, family and normalcy—if there was such a thing as normalcy for a young man facing eighty years in prison.

On a more practical note, time also allowed Jaywalker to attend to the rest of his practice, which he'd begun to neglect as he became immersed in Darren's case. He tried
a forgery case in federal court and came away with a lucky acquittal. A robbery defendant, whose victim had leaped out of a fourth-story window in order to escape his captors, pleaded guilty and accepted a five-year prison term. The victim had somehow survived a broken back and was now walking with a cane. Had he not, it would have become a murder case.

And on the personal front, time also gave Jaywalker an opportunity to get reacquainted with his own family, who'd seen precious little of him over the past few weeks. He prided himself on being an active, if not quite equal, partner in the raising of his daughter. Lately, however, his wife had begun to comment that he seemed to be distracted and complained about his growing habit of being absent even when he was present. If their daughter noticed, she didn't say anything. Of course, she was only four. But kids didn't miss much, he knew.

 

Jacob Pope's response to Jaywalker's motions arrived in the mail. First off, he supplied the locations and times of the crimes. As Jaywalker read the numbers and transposed them from military time to civilian, he could see that each of the attacks had taken place in the early afternoon hours. Even though he'd been expecting as much, seeing it in black and white came as a major blow. It meant Darren had no alibi. He hadn't been at work during any of the incidents.

Jaywalker reacted almost viscerally. During those early weeks and months, his belief in Darren's innocence had swung back and forth like an unseen but ever-present pendulum. One day Darren would look him in the eye and swear he knew nothing of the rapes, and Jaywalker would believe him with all his heart. The next day would bring
some new fact or development that would point directly and inexorably at Darren, and Jaywalker would be filled with doubt all over again. The realization that he wasn't going to be able to call a single witness to account for Darren's presence on any of three separate days was a perfect example. And with each such setback, Jaywalker had to contend once again with the distinct possibility—indeed, the overwhelming probability—that maybe they had the right guy after all.

Pope's response continued. He stated that he had no admission or confession of Darren's to offer at the trial. He conceded that a pretrial identification hearing would be necessary, because a photographic lineup had been conducted, and a judge would have to decide if it had been fair or overly suggestive. He resisted supplying the defense with police reports the law didn't require him to turn over yet. And he opposed the request for a severance, contending that all four attacks should be tried together, as one case.

The severance issue was one that bothered Jaywalker. Did he really want one grand roll of the dice, a single trial including all of the victims, winner take all? Or would it truly be better if the case were split up into four, so that a jury trying one part of it wouldn't even learn of the other three attacks? The advantage to such an approach was obvious: they would avoid the prejudice that would flow from the sheer number of incidents and wouldn't have to contend with a jury's falling into a
where-there's-smoke-there's-fire
mindset. But there was an equally obvious downside, too: severance would give Pope multiple opportunities to convict Darren. They were looking at as many as four separate trials—five, if the remaining victim sur
faced. He could win three or even four times, only to lose the last one, and still have Darren end up with a fifteen-or twenty-five-year prison sentence.

As the defense lawyer, Jaywalker had had no choice but to make the motion. Failure to have done so would have risen to the level of ineffective assistance of counsel, maybe even malpractice. More to the point, it was the right thing to do. But now, as he thought about it, he began to wonder if they shouldn't be careful about what they asked for, on the chance that they might just get it.

He opted to postpone making a decision on the matter. It could wait, he knew, until such time as he and Pope had to argue the question in front of a trial judge. By that time, though, he would have to decide if he really wanted separate trials or would prefer for the judge to turn him down. There was a way to argue forcefully, after all, and a way to just go through the motions. Besides which, if his motion was turned down and they were forced to defend against all the charges in front of a single jury, and convictions resulted on all counts—as they almost surely would—the issue would have been preserved, and the judgment might well be reversed on appeal. Then, with retrials ordered, they would get a second bite at the apple—or four or five bites, to be more accurate.

The phone rang. It was John McCarthy, calling with the initial results of some legwork. By checking NYPD and Housing Authority records, he'd confirmed that a fifth victim, Maria Sanchez, had been attacked. But she'd been only fourteen, and her parents had refused to let her view photos, testify at the grand jury or otherwise cooperate with the investigation. About all McCarthy had been able to find out about her was that she'd lied about her age to
her attacker, telling him she was only twelve, and he'd let her go. McCarthy had also gotten hold of the various descriptions of the perpetrator given by the victims following the attacks. To McCarthy, it seemed there were more than the usual discrepancies that invariably arose. All the victims had described a man slightly heavier and a bit older-looking than the twenty-two-year-old Darren. And although all of them had reported things the attacker had said to them, none of the reports included any mention of a stutter. He was anxious to take a shot at interviewing the victims himself.

Jaywalker thought about it, but only for a moment. “No,” he said. “I want you to hold off. I want Pope's answer on the polygraph first.”

“These witnesses don't belong to him, you know.”

It was true. Despite the common perception that someone is a prosecution witness or a defense witness, those labels only attach at trial and are determined by which side calls the individual to the stand. Unlike expert or character witnesses, “fact witnesses,” as they're called, are the exclusive province of neither side; their only allegiance is to the facts themselves. Or so the theory goes.

“You're right,” Jaywalker told McCarthy. “But I can't afford to make waves right now. You reach out to the victims, the first thing they're going to do is pick up the phone and call Pope or Rendell. They may even have been instructed to do so. That could sour Pope on the polygraph. And the way I look at it, John, that little black box may be the only real chance this kid has. So I need you to hold off for now.”

“Hey,” said McCarthy, “it's your show, Jay.”

They went over a few other things before hanging up.
McCarthy was right on both counts, Jaywalker knew. They needed to interview the victims, and it was Jaywalker's show. And when it came down to the tough calls, he had to make them and hope he was right. On this one, he had to play it safe.

Which didn't stop him from wondering if maybe his biggest mistake hadn't been deciding against becoming a doctor.

 

October came. The motions Jaywalker had made and Pope had opposed were formally submitted to the Part 12 judge for consideration, a process that would take several weeks. This was a bail case, after all, and there was no particular urgency on anyone's part to put it on a fast track. The fact that there were motions outstanding meant they would be looking at another postponement on the next date, as well, the 18th.

Again Jaywalker played catch-up with the rest of his cases, and reintroduced himself to his wife and daughter. They made it to a museum and a movie, and he even created a pizza from scratch, managing not to burn the bottom of the crust too badly. They paid a visit to a farm stand and bought the biggest pumpkin they could find. It took up the entire backseat of the Volkswagen, weighed about a ton, required all three of them to lug it into the house and cost Jaywalker half the retainer that Marlin Kingston had pressed into his hand a month earlier.

Not that Marlin hadn't been as good as his word, following up with small sums every time they met at court or at Jaywalker's office. And to a lawyer accustomed to getting most of his income in the form of small checks, smaller money orders, bail receipts conditioned upon a de
fendant's return to court or hand-scribbled IOUs, cash was always a delight, even as it had a way of burning a hole in Jaywalker's pocket. But no matter. As his daughter assured him, it was a great pumpkin, Charlie Brown.

 

The 18th came, and with it the first court appearance before the man who would become Darren Kingston's trial judge.

Even though it's a jury that renders the verdict, the judge can affect that verdict in many ways—some major, others minor; some obvious, others subtle; some entirely legitimate, others highly inappropriate. The judge decides if the defendant remains out on bail or is returned to custody once the trial commences. He rules on motions, acting as both judge and jury at pretrial hearings. He decides which items of evidence will be allowed in and which will be kept from the jury. A judge can shape the outcome of a trial by sustaining or overruling a single objection, or by the way in which he treats one lawyer or the other in front of the jurors, or by something so seemingly insignificant as the inflection of his voice when he reaches a key word or phrase during his charge to the jury. So it not only matters who the trial judge is, it matters a lot. Any lawyer who doubts that ought to think seriously about another career.

Max Davidoff was in his mid-to late-sixties, but his face was deeply lined and his hair nearly white. To Jaywalker, he looked like what a judge was supposed to look like. Prior to being appointed and then elected to the bench, he'd been the District Attorney of Bronx County. In other words, Jacob Pope's boss. Jaywalker did his best to assure the Kingstons that that fact alone was no cause
for either disqualification or concern. Indeed, he told them, it was former defense lawyers who often turned into the toughest judges, having learned over the years that defendants weren't always to be believed. Former prosecutors, who had spent those same years realizing that cops weren't, either, occasionally became the defense's best friends.

Wherever the truth really lay, the fact was that Max Davidoff had proved himself a pretty good judge. The book on him—and Jaywalker sought out a handful of Bronx Legal Aid lawyers to compile an oral scouting report—was that Davidoff ran a reasonably relaxed courtroom, tended to be fair to both sides, was reasonably knowledgeable when it came to matters of law, and treated attorneys with respect and defendants with compassion. Above all, he had a reputation for letting a lawyer try his case his way. Jaywalker could have asked for more, but not much more.

The case was called. Jacob Pope rose and explained that there were motions pending back in Part 12. Jaywalker suggested a date two weeks off. The case was adjourned.