Bronx Justice (4 page)

Outside the courtroom, Darren's family didn't seem to know whether to be amused or irritated that they'd missed a day's work and traipsed halfway across the Bronx just to witness the sixty-second performance they'd been treated to. Jaywalker was in the midst of explaining how over time the family's presence could influence the judge's attitude toward Darren when Pope came out of the courtroom and got his attention.

“Could I talk to you a minute, Mr. Jaywalker?”

“Sure. But it's not Mr. Jaywalker, it's Jay.”

“Jay.”

He excused himself to the Kingstons and followed Pope over to the large window that overlooked the building's center courtyard. He wondered if he was about to hear that Darren had once again been spotted by one of the victims.

“I spoke to my boss,” Pope said. “We're willing to give your man a polygraph.”

“Wonderful!” said Jaywalker, making no attempt to hide either his surprise or his pleasure.

“It'll be with the usual stipulation,” Pope continued. “I don't know if you're familiar with that or not.”

“Vaguely,” Jaywalker lied.
Stipulation?

“If he passes, we D.O.R. the case. If he flunks, the jury gets to hear that he did. I'll go ahead and set up a date with Detective Paulson, who'll administer the test. I suggest you call him in a day or two and get the date. I know he's pretty backed up right now, so it's likely to be a month, at the least.”

“Good enough. And I appreciate this,” Jaywalker felt compelled to add. Because he really did.

“Let me put it this way,” said Pope, all business all the time. “I've got four girls who say they're sure of their identifications. I believe them. But who knows? I could be wrong.” And with that, he shrugged, turned and walked away.

Jaywalker lost no time in sharing the news with the Kingstons, who seemed every bit as elated as he was. And if Darren was secretly apprehensive about the sudden reality of undergoing a lie detector test, he never once showed it.

Jaywalker went over the ground rules, explained that a “D.O.R.” meant a discharge on one's own recognizance, the functional equivalent of a dismissal of all charges. He added that the flip side, the defense's agreement to let the
jury know if Darren flunked the test, was unenforceable. Pope no doubt knew that, and had to assume that Jaywalker did, too. But as a practical matter, the bargain generally served its purpose. Defendants who flunked polygraph exams tended to fold their cards soon afterward and plead guilty.

“Next,” said Jaywalker, “we've got to decide whether we want to go into the test cold, or schedule our own private one beforehand.”

Marlin was the first to speak. “We leave it up to you, Jay,” he said.

“You can't leave it up to me. It's not my money. And it could cost anywhere from three hundred to five hundred dollars.”

Marlin took a moment to ponder that. In addition to the strain of having posted Darren's bail, he had Jaywalker's fee to contend with and was also responsible for paying John McCarthy, the investigator. The burden had to be enormous for him.

None of the other family members spoke. Inez may have been the ranking expert on child rearing, and Jaywalker had the sense that she ran a pretty tight ship at home, but on matters of money, they all deferred to Marlin.

“Let's take the private test first,” he said finally.

Jaywalker caught himself wondering if that amounted to a hedge of sorts. Did Marlin, too, harbor second thoughts about his son's innocence? But it was a question that went unasked and, therefore, unanswered.

“Fine,” said Jaywalker. “I'll set it up as soon as I can. Okay with you, Darren?”

“Okay with me, Jay.” His broad smile completely trumped his father's hesitancy, and with it, Jaywalker's
own doubts. Once again, it was as though the case was shadowed by a giant overhead pendulum, which would swing one moment in the direction of guilt and the next moment back to innocence.

 

In a year and half of private practice, and in two before that with Legal Aid, Jaywalker had never had a client take a polygraph examination. There was a reason for that. Polygraph results—unlike fingerprint evidence, blood typing (and now DNA tests), ballistics comparisons, hair and fiber analyses, and even handwriting and voice comparisons—were then, and continue to be, inadmissible at trial. The rule that excludes them is a sound one. Controlled studies have demonstrated their accuracy rate to be anywhere from fifty to ninety percent. Even a ninety-percent certainty leaves much to be desired in a system that prides itself on requiring proof of guilt beyond a reasonable doubt before there can be a conviction. As for a fifty-percent accuracy rate, that's the equivalent of a coin toss.

That said, polygraphs can still be useful tools. For one thing, it's always interesting, and occasionally quite revealing, to watch a suspect's reaction to the suggestion that he submit to a test, particularly when he's been told that the test is guaranteed to reveal deception. Some suspects will hem and haw, make up excuses, or even admit their guilt at that point. Jaywalker had tried the tactic several times already with Darren, warning him that failure would bring disaster. Each time, Darren had, without flinching, reaffirmed his eagerness to take the test.

Secondly, the exam by its nature includes an in-depth interview of the subject, something that law enforcement personnel are always eager to conduct. Many a suspect has
been coaxed or tricked into a revealing admission during the interview, occasionally even into an outright confession.

Finally, whatever its intrinsic worth or evidentiary value, a favorable polygraph result becomes something to hang one's hat on. A defense lawyer will leak it to a newspaper reporter; a prosecutor will cite it as a reason to recommend dismissal of a case; and a judge will refer to it in granting that dismissal.

Hypocrisy? Junk science elevated to mainstream thinking? Perhaps. But Jaywalker wasn't going to let such philosophical considerations deter him. Jacob Pope had offered them a way out, and they were going to do their best to take advantage of it.

Over the next few days, Jaywalker asked around about polygraph operators and came up with a handful of names. The one he kept hearing was Dick Arledge, a man who taught and trained other examiners, and who'd refined the technology to the point of developing and designing his own machines. Jaywalker called his office, set up an appointment, and notified Darren of the date and time, and the fee he would have to bring. He also phoned the district attorney's office and learned that they'd scheduled their exam for early December. That was good; it gave the defense ample time to get their own test done and evaluate the results.

Jaywalker didn't bother telling either Pope or Detective Paulson, the polygraphist he'd chosen, that he was having Darren examined on his own. Just as Marlin had hedged his bet by opting for the private test, so was Jaywalker hedging by his silence. That way, if Darren were to pass, great; he would go into the D.A.'s test more confident than ever. And if he were to flunk, they could always pull
out of the second one. “I've done a little checking,” he could always tell Pope. “I never knew how unreliable these things are. We'll take our chances at trial.”

 

Looking back later, Jaywalker would come to realize that the week waiting for that first exam was a strange time, an interlude during which he fantasized that his role in the case was drawing to an end. In spite of everything he knew about polygraphs and their shortcomings, he gradually put that knowledge aside. Instead, he began to engage in a bit of magical thinking. He became convinced that the test would solve everything. After all, this wasn't a case involving nuances. There was no claim of self-defense, for example, or of an innocent mistake; there were no state-of-mind issues to be debated. No, Darren was either completely innocent or he was just as completely guilty. Now a little black box with a bunch of wires attached to it was going to tell them, for once and for all.

Which made it only natural to wonder just which answer the box was going to spit out.

Jaywalker had begun by assuming Darren's guilt. Three years of lawyering, and two before that with the DEA, had taught him to doubt everyone he encountered, whether it was on the street, across a desk or through the bars of a jail cell. They were all innocent, every last one of them. The junkie with heroin in his pocket had mistakenly put on his roommate's pants. The shoplifter had simply been taking the leather bomber jacket to another department to see how it looked with a white scarf. The burglar was just trying to find his cousin's apartment. The cocaine dealer had all that cash in his sock to buy a stroller for his baby's mama. And the murderer hadn't meant to stab anyone;
he'd simply been cleaning his knife when the victim had accidentally backed into it—thirty-three times.

Learning the morning of Darren's first court appearance that no less than five victims had identified him as their attacker, Jaywalker had drawn the obvious conclusion. They couldn't all be wrong. Darren had to be guilty.

Since then, however, things had begun to happen. Little things. Nothing dramatic, nothing earthshaking. Darren's unflagging insistence on his innocence; his eagerness to take a lie detector test, even after hearing it was guaranteed to reveal the truth; the claim by one of the victims that she'd seen him again in her building when his whole family insisted he hadn't been there; the discrepancies between the victims' descriptions and Darren; and the fact that not one of them had reported that her attacker spoke with a stutter. Not that any one of those things, standing by itself, convinced Jaywalker of Darren's innocence. But combined, they'd gradually begun to take on an undeniable weight. Each new revelation had forced Jaywalker to rethink his initial knee-jerk reaction that Darren had to be the rapist. As the time for the polygraph exam approached, the truth was, he didn't know what to think.

By far the most frequently asked question put to any criminal defense lawyer is “How can you represent someone you know is guilty?” Three years into practice, Jaywalker had developed his response, which he dusted off and repeated whenever asked. Phrases like “Everyone deserves someone in his corner,” “I believe in the system” and “Even society's most despised members deserve representation” were met with approving nods or bewildered stares. But what Jaywalker was rarely called on to expound upon was the darker half of the equation. The truth was,
as he'd quickly learned, that representing a guilty client brings enormous comfort. The lawyer's job is simple and straightforward: listen to the client patiently, explain the system to him and get him a decent plea offer. If the client accepts it, the case is over. If he doesn't, he takes his chances at trial. If that trial should somehow result in an acquittal, it would mean that Jaywalker had managed to defy the odds. If it should result in a conviction, as expected, it was because the defendant was guilty all along.

So it wasn't the notion of representing a guilty defendant that bothered Jaywalker. It didn't, not at all. What bothered him, what scared the life out of him, was the specter of representing an
innocent
defendant. Suddenly, none of the usual rules applied. To an innocent man, no plea bargain is acceptable. No amount of patient listening will placate him. No explanation of how the system works will suffice. A trial becomes inevitable, and the need to win at that trial becomes nothing less than essential. And whose responsibility is it to win? The defense lawyer's, that's who.

For Jaywalker, that responsibility, that need to win, was as unwelcome as it was awesome. The trial suddenly changes from an exercise in due process to a horror show. Every utterance by the prosecutor, every piece of evidence that suggests guilt, every look of disapproval from the jury box, becomes a gut-wrenching outrage. If the trial somehow ends with an acquittal, it's no thanks to the lawyer: after all, the defendant was innocent, and the system simply worked as it was supposed to. But suppose for a moment that the trial ends with a conviction. What then? For Jaywalker, that was unthinkable; that was the stuff of nightmares.

Which was the beauty of the polygraph, the wonderful lure of the magical thinking in which he now lost himself. It was all so simple. Darren was guilty, or he was innocent. If he was innocent, Jacob Pope would do the right thing and D.O.R. the case. And now they were about to find out.

The little black box was going to tell them.

CERTIFIED

LIE DETECTION

INSTITUTE

 

read the sign on the door. Jaywalker rang the bell and waited, afraid he was too early. Eventually a shadow appeared beyond the frosted glass and the door swung open.

“Mr. Jaywalker?”

“Yes.”

“Come on in. I'm Gene Sandusky.”

Sandusky was Dick Arledge's assistant. He was young, meticulously groomed, and polished. His black hair was precisely combed to cover a bald spot that vanity prevented him from yielding to.

While they waited for Darren to arrive, Sandusky and Jaywalker went over the facts of the case in detail. Sandusky drew up releases from liability that Darren would have to sign. He explained the procedure that he would be following in this particular case: picking one of
the rapes and concentrating on it. He would compose his test questions after beginning his interview of Darren, and sprinkle in some control questions. Jaywalker could observe the test if he wanted to, but because his presence might interfere with Darren's concentration, he would have to do so through a special mirror from another room, without Darren's knowledge. To this day, Jaywalker can't remember if Sandusky referred to it as a two-way or a one-way mirror, and has no idea which term is correct. But he got the idea.

Darren showed up promptly at 9:30 a.m., accompanied by his cousin Delroid. Jaywalker was glad to see Darren was still following his instructions to have another adult with him at all times. He introduced them to Sandusky.

“Pl-pl-pl-pleased to meet you,” Darren managed to say.

Jaywalker wondered if the stutter was a bad omen.

Leaving Delroid in the waiting area, Jaywalker and Darren followed Sandusky to a small conference room. There they spent ten minutes on preliminaries—the payment of the fee, the executing of the releases and a discussion of the case in general terms. Then Sandusky announced that Jaywalker would have to leave. Jaywalker rose, shook hands with Darren, wished him luck and said he would call him later. He felt a little bit as though he were abandoning him. He didn't know what Darren felt.

Sandusky led Jaywalker out of the room, then out of the office altogether. Once in the corridor, he unlocked a second door and ushered Jaywalker into a small room, closing the door behind them. The room was dark, the only light coming through a two-way—or perhaps a one-way—mirror, which looked into the testing room. The glass was adorned
with shelves on the other side, which in turn held small figurines, in order to give the test subject the impression that the mirror was purely decorative. The testing room itself was also small. It contained only a table, a couple of straight-backed chairs and the polygraph machine.

Sandusky motioned to a chair directly in front of the glass, and while Jaywalker seated himself, Sandusky adjusted the knobs on some audio equipment.

“Keep the lights off,” he cautioned, “and try to make as little noise as possible. And don't smoke. A match or even a lit cigarette can be seen from the other side. Okay?”

“Okay.”

Sandusky closed the door tightly behind him. A minute or two later, he appeared in the testing room, followed by Darren. Jaywalker's instinctive reaction was to lean back, away from the glass, certain he could be seen. But Darren's gaze paused only momentarily at the mirror, without any sign of recognition.

“All right, Darren,” said Sandusky. “Why don't you have a seat right here.” His voice was loud and clear through the speaker. If Jaywalker had earlier felt he was abandoning his client, he now had the sense that he was spying on him. But it didn't occur to him to look away or cover his ears. Instead, he watched and listened intently as Darren sat down. He took his eyes off him only long enough to glance at his watch. It was 9:44.

“Now,” said Sandusky, “this is the machine we've all been talking about.” He patted the polygraph affectionately. It was about the size of a large phonograph or old reel-to-reel tape recorder, and had wires that led to various attachments. At one end of the machine was a roll of graph paper, with needles balanced on it.

Sandusky flicked a switch on the side of the machine. The paper began to move slowly. The needles didn't.

“You see what it's doing?” he asked.

“It's dr-dr-drawing straight lines,” said Darren.

“Right. How come a straight line?”

“It's not turned on?” Darren guessed.

“No, it's turned on,” said Sandusky. “See, the paper's moving. But how come the lines aren't moving up and down?”

“It's not attached to anything?”

“Exactly. This machine does one thing, and only one thing.” Here Sandusky paused for effect. “It moves paper. You do the rest.”

Sandusky began making adjustments to the machine, continuing to speak as he did so. “Darren,” he said, “put your right hand out in front of you and wiggle your fingers.”

Darren obeyed.

“Very good. Now your left hand.”

Darren obeyed again.

“Good. You've just used part of your nervous system. We have two types of nerves,” Sandusky explained, “voluntary nerves and involuntary nerves. By moving your fingers, you just controlled certain nerves in your hands. Because you can control them, we call them voluntary. Now,” he continued, attaching a blood pressure cuff to Darren's forearm and inflating it, “notice that our machine works after all.”

Indeed, one of the needles had come to life and was dancing up and down on the paper.

“Okay, Darren, I want you to make your heart stop pumping for thirty seconds.”

Darren smiled uncertainly.

“What's so funny?” Sandusky asked.

“I c-c-can't.”

“Why not?”

“You can't stop your heart.”

“Precisely,” Sandusky agreed. “That's because your heart is run by
involuntary
nerves. You can't control them. And that's all that this test is about, involuntary nerves. Things that happen inside your body that you can't control.”

Jaywalker couldn't help but smile. It was mesmerizing. This guy could have been a terrific car salesman, he decided, or an awesome preacher. Or both. He could sell used Chevys all week and salvation come Sunday.

Even as he'd been talking, Sandusky had attached a second strap to Darren's other wrist, and two to his torso—one around his chest, the other around his midsection. “By the way,” he assured Darren, “none of this is going to hurt at all.” He taped a final strap to the palm of one of Darren's hands. Each attachment—and there were now five of them—was connected by a wire to one of the needles, which moved visibly up and down on the graph paper and recorded Darren's blood pressure, pulse, upper and lower respiration, and galvanic skin response…the electrical conductivity of the skin, which increases with sweating.

“Now, Darren,” said Sandusky, “I've got three cards here.” He held them up so that not only Darren, but also Jaywalker, could see that the first was blue, the second pink and the third blue except for a pink border along the top. “I'm going to ask you some questions about them. I want you to answer ‘Yes' to each of my questions. No matter what, just answer ‘Yes.' Understand?”

“Yes,” said Darren.

Sandusky held up the blue card. “Is this card blue?” he asked.

“Yes,” Darren answered.

Sandusky held up the pink card. “Is this card blue?”

“Yes,” Darren answered.

Sandusky held up the blue card with the pink border. “Is this card blue?”

“Yes.”

After each response, Sandusky had marked the graph paper for later reference. Now he stopped the machine and deflated the blood pressure cuff. While Darren stretched and rubbed his forearm, Sandusky studied the paper.

“Wow!” he exclaimed. “We're not going to have any trouble, not a bit. I'd say you're a very sensitive young man, Darren. Has anyone ever told you that? That you're sensitive?”

“Yes,” said Darren. “I've heard people say that.”

“I'm not surprised,” said Sandusky, still studying the paper. “These responses are very sharp. On the first question, about the blue card, you showed a definite truth. On the second question, the pink card, you showed a definite lie, no question about it. What do you think you showed on the third question?” He held up the blue card with the pink border.

“I d-d-d-don't know,” said Darren. “Half and half?”

“Nope, not according to this. On the third question, you showed a lie, just as strong as the second. See, this card really isn't blue, is it?” He held it up again. “Now you may think that's not fair, that you were being
mostly
truthful when you said it was blue. But I'm afraid you can't get away with
mostly
here. It's sort of like the kind of
white lie
we sometimes tell people, like saying ‘I love you,' or
‘I feel fine,' or ‘You look terrific,' when it's not completely true. You see, it may be okay to tell white lies to people, to spare their feelings, say. But not to the machine. The machine has no feelings. To the machine, a white lie is like any other lie.

“Let me give you an example, Darren, one actually not too different from your case. I tested a guy last year on a rape. Girl claimed the guy had followed her home, forced his way into her apartment and raped her. He denied it, claimed he'd never seen the girl in his life. His lawyer asked him if he'd be willing to take a polygraph test. He said okay, and he came to see me. I tested him, and he flunked. It was only months later that I found out the real story. Seems he'd picked the girl up in a bar, and she'd invited him back to her apartment. They started to get real friendly, know what I mean?”

Darren nodded.

“Right at the last minute, she gets cold feet. But he figures she's only being cute, playing hard to get. And he's not about to stop by that time, anyway. So he goes through with it. Was it really a rape? Who knows? She must have thought so, 'cause right after he leaves, she calls the police. When they bring him in for questioning, he denies knowing the girl or having been in her apartment, everything. And he had the police believing him, figuring they had the wrong guy. But not the machine. The machine—” and here Sandusky patted it affectionately “—showed only that he was lying. It didn't understand
mostly.

“The result was,” Sandusky continued, “the guy got jammed up real bad. Much worse than if he'd come clean in the first place. I'm only sorry he didn't tell me up front.” He began reinflating the blood pressure cuff. “Or his
lawyer. I like to think that the lawyer and I are part of the same team. After all, we're both working for the guy that's paying us, right?”

“Right,” Darren agreed.

Sandusky started up the machine again. “Tell me,” he said, “before you were arrested on this case, had you ever seen Joanne Kenarden?”

“No,” said Darren, without hesitation.

Sandusky marked the paper.

“Is there any chance your fingerprints might have been found on her clothing or things?”

“No.”

Sandusky made another mark and shut off the machine. He stood up, came around to Darren, and removed the blood pressure cuff and other straps. Darren stretched.

“Seeing as this is your test,” Sandusky said, “are there any questions you'd like me to include?”

Darren seemed to think for a moment. Then he said, “Yes. Ask me if I've even been up in that area the past couple of years.”

“The Castle Hill Project area?”

“Yes.”

“Fair enough. Now, are there any questions you'd like me to stay away from, for any reason?”

Darren thought again before saying no.

“Okay,” said Sandusky. “Why don't you relax. I'll be back in a few minutes.” With that, he left the room, closing the door behind him. Jaywalker got up and moved back away from the mirror in anticipation of Sandusky's coming into the observation room, fearful that the light from the opening door might reveal him to Darren.

When Sandusky did enter, the first thing he did was
study Darren through the glass. Darren continued to stretch, humming softly to himself. Sandusky motioned Jaywalker to follow him out of the room. When they reached the conference room, he lit a cigarette.

“He's very nervous,” he said.

“I would be, too.” As soon as Jaywalker had said the words, he realized he was being overly defensive of his client. But that was his job, wasn't it? Besides, there was something about Sandusky's observation he didn't like.

Sandusky ignored the comment. He sat down at his desk and searched through a drawer until he found the form he was looking for. Then he used it to write out the questions he was going to ask Darren. He inserted them in the blanks for questions 2, 3, 6, 7 and 9. Questions 1, 4, 5 and 8 he left open. He stubbed out his cigarette and stood up.