Bronx Justice (8 page)

T
he case was called, and both Pope and Jaywalker answered that they were ready for the hearing. Justice Davidoff marked it for a second call, announcing that he'd begin the hearing as soon as he got through the rest of the matters on his calendar.

Jaywalker stepped outside the courtroom with the Kingstons. He went over the Wade hearing procedures with them once more. For some reason he felt a compulsion to explain everything to them. Again he reminded them that they stood no chance of “winning” anything at the hearing, that for them it represented a vehicle to get more information to use at the trial. A free look.

It was eleven o'clock by the time the case was recalled. Justice Davidoff, squinting at Jaywalker's motion papers in front of him, remarked that there seemed to be two issues before him, the Wade hearing and the defense's motion to sever the cases into four separate trials.

“How is this severance question going to affect our hearing?” he asked.

“It isn't,” Jaywalker replied, jumping up to beat Pope to the punch. “I suggest we hold off on the severance issue until after the hearing. Once Your Honor has heard the testimony, you'll be in a much better position to rule on severance.”

But Pope wasn't about to be outmaneuvered. “I disagree,” he said, rising to his feet. “How many witnesses I call at the hearing depends entirely upon how Your Honor rules on the severance motion. Should you decide, for example, that there must be separate trials, then it would be ridiculous for me to have had to call all four victims to the stand, when it turns out only one was needed.”

Between the lines, of course, Pope was offering Justice Davidoff a quick hearing in place of a protracted one. Always an effective strategy.

“Yes,” said the judge, “I agree. I think it makes more sense to take up the severance motion first. Do you wish to be heard on it, Mr. Jaywalker?”

“Yes, I do,” said Jaywalker, rising again as Pope resumed his seat.

So a moment of truth had arrived even earlier than Jaywalker had expected, or feared. In his motion, he'd formally requested that the case be split up into four trials. Now, as he was about to begin his oral argument in support of that position, he had a decision to make. Did he want to argue forcefully enough to persuade Davidoff, or merely well enough to protect the record, thereby allowing the judge to rule against him, and hopefully be reversed on appeal, in the event of a conviction?

“As I pointed out in my papers,” Jaywalker began, “this is not one case, but four. Stacked together in this indictment are four separate sets of criminal acts, each described
in a number of counts. There are four victims, four times, and four places of occurrence.” The more he spoke, the more convinced he became that he was right, that they truly needed separate trials. And without ever making a specific, conscious decision, he found himself going all out, doing his best to convince Davidoff.

“The district attorney's office,” he continued, “has joined these cases into a single indictment. I have to guess that they've done that for two reasons. First, it would save us all—the D.A.'s office, the court, the defendant, and certainly me—a lot of time and effort if we have to try only one case, instead of four. Second, it's a surefire way for the prosecution to win a conviction that they otherwise might not be able to.

“Well,” Jaywalker went on, “the answer to the first concern is simple. No amount of time or effort we save is justification to abridge the rights of this young man. If it takes us
ten
trials to insure him his rights under the Constitution, then ten trials we must give him.

“The answer to the second concern is a bit more complicated, but only a bit.” He paused for effect. “Each of these four cases involves, if I'm correct, a single-witness identification. In separate trials, the prosecution would be barred from bringing in the other victims. The jury would be considering one attack, one victim, one issue—is Darren Kingston the man who attacked that victim? Both sides would get a fair trial.

“But in a joint trial, in spite of any instructions to the contrary that you might give them, the jury is going to apply the old ‘Where there's smoke, there's fire' adage. Forgive my bluntness, but there's simply no way in hell they're going
to acquit a man charged with four rapes, whatever the evidence. We might as well sentence him right now.

“Finally,” Jaywalker added, “there's yet another problem involved here. Your Honor is going to have to instruct the jury regarding the corroboration requirement required in a rape case. That's a difficult enough matter in a one-victim case. Throw in a second victim, and you're going to have jurors impermissibly bootstrapping one victim's account with the other's. Add two more victims, and you may as well kiss the corroboration requirement goodbye.”

It had been a valid argument then, even if it was one that Jaywalker wouldn't be able to make today. The legislature has since seen fit to eliminate the requirement, and rightly so. Even Jaywalker, a defense lawyer, would admit it had been high time for the change.

“I'm afraid,” he concluded, “that there's only one way we're going to be able to give this man a fair trial. And that's to give him four trials.”

Pope rose as Jaywalker sat down. “Your Honor,” he began, “the Criminal Procedure Law gives the court discretion to try cases jointly where it would serve the interest of justice, and where they are similar in time, place and manner.

“In time, two of these crimes occurred an hour apart. The third occurred the following day, the fourth several weeks later. In place, all four occurred in the area known as the Castle Hill Housing Project. In manner, the four could hardly be closer. In each instance, the defendant followed his victim onto an elevator, pulled a knife, took his victim off the elevator, led her into a stairwell or onto a landing, and attempted to rape her. In two instances he succeeded, in two he failed.

“I have faith in Your Honor's ability to instruct the jury
properly, and in the jury's ability to follow your instructions conscientiously.”

With that, he sat down.

Justice Davidoff, who'd taken notes throughout the argument, continued to write in silence for several minutes. Finally he straightened up and cleared his throat. “The court,” he began to read, “having heard argument of counsel, grants the defendant's motion for a severance to the following extent—the two rapes, involving the victims Cerami and Kenarden, which occurred on the same date and only hours apart, will be tried together. The two attempted rapes, involving the victims Maldonado and Caldwell, which occurred on subsequent dates, are severed.”

Jaywalker tried to cover his surprise at what he'd just heard. Already he knew this much: he didn't like it. Somehow the defense had ended up with the worst of all possible worlds. Pope would be permitted to try two of the cases at once, giving him all the edge he would need. But at the same time, holding the remaining two cases in abeyance would deprive Jaywalker of a winner-take-all trial, leaving the prosecution an insurance policy in case it failed to win the first time around. Finally, by basing his decision on the times of the incidents, Davidoff might well have come up with a rationale acceptable to an appellate court.

Jaywalker had certainly lost round one.

“So,” the judge was asking, “are we ready to proceed with the Wade hearing as to the two rape victims?”

“Yes, Your Honor,” said Pope.

“Yes.” Jaywalker nodded weakly.

“Call your first witness, Mr. Pope.”

 

“The People call Detective Robert Rendell.”

Pope motioned to a uniformed court officer, who opened the courtroom door. A moment later, Detective Rendell entered. Jaywalker was struck by the detective's height and good looks, just as he had been upon seeing him that first day in court. He'd known then, as he knew today, that Rendell would make a compelling witness. Although right now, with no jury present, the advantage was somewhat minimized.

Rendell was sworn in by the court clerk and seated. Pope began his direct examination with a few preliminary questions about Rendell's rank, experience and assignments in the police department. Then he moved on to August 24th, 1979.

Jaywalker looked up from his note-taking. McCarthy had reported back to him that all three had identified photos of Darren, but none of the details. This was a devastating bit of testimony. Jaywalker listened carefully as Pope pursued it.

Jaywalker sat back heavily, knowing they were in deep trouble. Pope continued. He had Rendell produce the photograph of Darren. It was a front-and-profile mug shot, bearing a 1977 date, obviously taken at the time of Darren's previous arrest, back when he and Charlene had been living with his parents, in the 43rd Precinct. And although it was more than two years old, it was still a pretty good likeness.

Rendell produced the other photos he'd used. After being marked into evidence, they were placed on the defense table. Jaywalker spread them out in front of him and studied them. There were eighteen in all. All were mug shots of young black males; some even resembled Darren rather closely. Rendell had been fair in his selection. As Jaywalker looked at them, he could see that Pope was watching him, waiting for his reaction. Jaywalker did his best to avoid looking dejected, but it was hard. The simultaneous emotional responses of the victims, the certainty of their exclamations, the fairness of the other photos, and the success of all three victims in picking out Darren's photo from the others—all those elements, when combined, spelled absolute disaster for the defense. Not just at the Wade hearing, which Jaywalker had never had illusions of winning, but at the trial itself.

Pope continued with his direct examination of Rendell, but the remainder was anticlimactic. The damage had been done. When Pope was finished, Justice Davidoff turned toward Jaywalker.

“Cross-examination?”

“Yes, Your Honor.”

But Jaywalker had little to ask the detective. He established that there had never been an actual corporeal lineup, just the photo array. He got Rendell to be more specific regarding who had said what upon first seeing Darren's photo. He questioned him about certain details in his reports. After twenty minutes or so, he let the detective off the stand, before Justice Davidoff began to show annoyance. He knew he would have to save the judge's patience for the two victims, whose testimony he needed far more than the detective's.

They broke at one o'clock. Jaywalker politely declined the Kingstons' invitation to join them at lunch. He never ate breakfast, and whenever he was on trial he worked straight through the recess, fueled by adrenaline in place of food. It was a diet not to be recommended to the general public. Good for eliminating five pounds a week, it was also guaranteed to bring its share of blinding headaches.