Bronx Justice (9 page)

As he reviewed his list of questions for the victims, it occurred to Jaywalker that much of the responsibility for Darren's arrest was Jaywalker's own. Following the dismissal of the 1977 case, Darren's record was supposed to have been sealed, and all the photographs and fingerprint cards the police had of him should have been destroyed. Jaywalker had dutifully sent off a letter to the NYPD, including with it a copy of the disposition slip. But he'd never followed up on it, never checked to see if in fact the files had been purged. Now it was clear that they hadn't been.

Today the system is self-activated and far more efficient. Back then, it was hit or miss. The truth was, though, that he wouldn't even have known how to go about check
ing up on something like that. What could he have done, gone to the local precinct house and asked them to go through all their mug-shot files? They would have thrown him out on his ear, or worse. But none of that stopped him from feeling that had he been more thorough, Darren's photo wouldn't have been there, waiting for someone to pick it out.

 

After the break, Pope called Eleanor Cerami to the stand. She'd been the first of the victims to be attacked. She was a small white woman who spoke timidly and was obviously frightened. Pope had her describe the incident, bringing out the fact that she'd been with her attacker for somewhere between fifteen and twenty minutes, certainly long enough to get a good look at him. Then he shifted to the day at the precinct, eliciting her version of the excitement that had occurred when the three young women had first spotted the photo of Darren. He concluded by asking her if she now saw the man in the courtroom. She nodded and pointed directly at Darren. Jaywalker had the distinct impression that as much as anything else, Pope was running her through a dress rehearsal for the trial. In response to his final question, she said there was no doubt in her mind.

Jaywalker began his cross-examination as gently as he could. He wanted Mrs. Cerami to relax a bit, if possible, to trust him, to treat the proceeding as a search for the facts, rather than a contest between lawyer and witness. He also didn't want to give Justice Davidoff cause to step in and protect her.

He got her to admit that at first she'd paid no particular attention to the man who'd gotten onto the elevator after
she had. He was black, but so were lots of the project residents. It had only been when he suddenly displayed the knife that she'd taken real notice of him. Even then, her attention had been divided between the man himself and the knife. And when he'd marched her off the elevator, he'd been alongside her, rather than facing her.

Jaywalker began to feel he was doing all right. He had Mrs. Cerami describe the unscrewing of the overhead lightbulb and the sex acts themselves. Then he decided to go for broke. After all, there was no jury present, and he needed to know.

Jaywalker winced. So much for his clever question. Still, it was better to hear the bad news now than to bring it out in front of a jury. He asked Mrs. Cerami about the lighting, once the man had unscrewed the lightbulb. She said it had still been pretty good. Jaywalker winced again. He pushed on, questioning her in detail about the opportunity she'd had to see the man and the description of him she'd later given to the police. He concluded by bringing out that, according to her recollection, there had been nothing unusual about her attacker in the way of scars, marks, deformities or speech mannerisms. Then he thanked her and sat down.

 

Next Pope called Joanne Kenarden. Jaywalker recognized her from Darren's first court appearance, back in
September. He was struck again by her hardness, particularly in contrast to the timidity of Eleanor Cerami. Pope asked her about the day of the incident. She answered each of his questions directly, without hesitation. He got to the moment of the sex acts.

Pope continued, bringing out the fact that she'd spent about twenty minutes with her assailant, during which time she'd had ample opportunity to observe and remember him.

On cross-examination, Jaywalker questioned Miss Kenarden in detail about everything that had taken place. She, too, said that her attacker had spoken at some length. Jaywalker brought out as much of the actual conversation as he could. He was mindful of the fact that she was the only one of the four victims John McCarthy had been unable to interview. He needed her answer on the question of whether the man who'd raped her had spoken with a stutter.

Jaywalker exhaled. This was good stuff, but he wanted more. In addition to his stutter, Darren had a chipped front tooth, and a small scar that interrupted one of his eyebrows.

Jaywalker sat down. The testimony was over; all that remained were legal arguments. He asked Justice Davidoff to rule the photo array impermissibly suggestive, and
tainted by the earlier events at the station house. He urged him to hold that a “lineup by photograph” was inherently improper when an actual lineup could have been held instead. The judge interrupted him several times during his argument, though never rudely. But he made it clear that he thought the procedures used were proper. At one point he commented rather gratuitously that “there was no question in the officer's mind, or the witnesses' minds, who the individual was who was responsible.”

Even before Pope rose to speak, Jaywalker knew the defense had no chance. His motion to suppress the courtroom identifications was denied, and the case was put over until February 20th.

For trial.

B
e wary of the lawyer who's afraid to go to trial. But be just as wary of the one with no fear at all. The lawyer you want, it turns out, is the one who has a love-hate relationship with the trial process. One who, even as he readies himself to do battle, at the same time knows that it's going to take place because he's failed to deliver for his client. Failed to deliver a dismissal, a desirable plea bargain, whatever. In the final analysis, a trial is a last resort, a roll of the dice that trades compromise for either complete deliverance or complete disaster. Getting ready for trial, therefore, takes on all the seriousness of getting ready for war, and war is as serious a business as there is. The lawyer who doesn't understand this and isn't humbled by it is no lawyer at all.

Jaywalker understood it.

He spent the final three weeks organizing his notes for the hundredth time, all but memorizing the testimony from the Wade hearing, tying up every conceivable loose end and planning what would become his trial strategy, his battle plan.

Some lawyers will tell you that they win their cases by doing exhaustive pretrial investigation, others by conducting withering cross-examinations, still others by delivering brilliant summations. All of these skills are important, to be sure, as are those associated with jury selection, opening statements, direct examination, legal research and a dozen or more other items.

With his own DEA background and John McCarthy's help, Jaywalker was more than competent when it came to the art of investigating. His acquittal rate at Legal Aid, and in the year and a half since, was impressive. But as the trial of Darren Kingston approached, he was only four years into trying cases, and most of those had been non-jury misdemeanors. He still considered himself only an average examiner of witnesses, whether on direct or cross. His summations, while good, were hardly outstanding. Jury selection was still something of a mystery to him. Over time, he would learn how to win a case during the opening statement, but back in 1980, he would have scoffed at the notion that such a thing was even possible. And he would never become a legal scholar.

But even then, even in his infancy as a trial lawyer, Jaywalker loved strategy and—though he would never have admitted it out loud—in private moments he dared to think of himself as a master tactician.

Strategy and tactics are all but invisible to the casual observer of a criminal trial. But to Jaywalker's way of thinking, they were absolutely essential to the business of winning. What kind of a jury do you really want on a given case? Do you reveal your defense to them early on or hold off till the prosecution's committed itself? Do you concede that the crime was actually committed, or do you
dispute everything? Do you attack a particular witness head-on, or do you treat her gently? Do you present an alibi defense if it depends upon family members? Do you put the defendant on the stand when doing so will reveal his prior criminal record? Or do you keep him off, knowing that your reasonable doubt argument will be stronger? Do you dress your client up in a suit and tie to show respect, or have him wear jeans and work boots, as he does in real life?

If these seem like trivial considerations, they're anything but. These are the things that trials are won or lost on, the stuff upon which a defendant's freedom depends. Every last one of them involves a monumental decision. And the decisions are lonely ones, made in the early morning darkness following a fitful night's sleep.

There are lawyers who make decisions by committee—consulting with partners, colleagues, jury experts, family and friends. There are lawyers who cop out and practice defensively, refraining from making an opening statement lest they tip their hands or from asking a question on cross-examination unless they know the answer in advance. There are lawyers who put their clients on the stand simply because they want to testify and might later complain that they were talked out of doing so. And there are lawyers who decide things by not deciding, and spend their time sitting on their butts and riding the trial out as it takes its course, like a passenger parked in the middle of a canoe, watching the scenery going by and waiting for the destination to arrive.

And then there was Jaywalker.

He knew that, for better or for worse, the decisions were his to make. Not his colleagues, not his family or friends,
not some self-professed expert, not even his client. Never mind that the Constitution gave the defendant the right to testify or to remain silent, the option of making an opening statement or waiving it, the choice of contesting some piece of evidence or conceding it. Jaywalker was going to make those decisions, and then he was going to convince his client why he was right. And there was only one guiding principle involved in the calculus, and its name was winning.

The surest way Jaywalker knew of winning was to go into court with a better game plan than his adversary, to make the right tactical decisions and then to execute them properly. But that was easier said than done. In practice, it was often nothing short of gut-wrenching. Over time, he already knew, it would eat his insides out.

Among the decisions Jaywalker was going to have to make during this trial was what to do about the photographic identifications of Darren by Eleanor Cerami and Joanne Kenarden. Because Jacob Pope was prevented by law from bringing them out at trial, he had no real way of letting the jury know what had led to Darren's arrest. They would be left to speculate, something Justice Davidoff would instruct them that they mustn't do but human nature would compel them to do nonetheless.

But unlike Pope, Jaywalker was free to go into the photo identifications if he chose to. The same statute that tied the prosecutor's hands permitted the defense to explore the matter in front of the jury, in order to show that the procedure used had impacted the identifications the witnesses would be making at trial. Justice Davidoff had ruled that any suggestiveness hadn't risen to the level requiring trial identifications to be excluded, but that ruling didn't prevent
Jaywalker from trying to demonstrate to the jurors that the procedure had nonetheless influenced the witnesses to some extent. Darren's constitutional right to have his case decided not by a judge, but by a jury of his peers, still gave Jaywalker the option of bringing up the matter if he chose to.

But did he?

Talk about a double-edged sword. On the one hand, Jaywalker was anxious to show that Mrs. Cerami and Miss Kenarden had been influenced by each other in picking out the photo of Darren. And Detective Rendell's waiting only ten minutes to show them a photo array, no matter how fairly composed, was hardly a meaningful test. Darren's photo was still fresh in their minds; all they had to do was pick it out again. There were definitely some points to be made here.

On the other hand, the certainty and spontaneity with which they'd reacted to the photo were damaging. And the fact that they'd been able to select it from seventeen similar-looking others, no matter how soon thereafter, was impressive. Jaywalker could imagine Pope offering the full set of photos into evidence—something Davidoff would surely let him do, once Jaywalker had opened the door—and the jurors ending up with it in front of them during their deliberations.

Jaywalker kicked the issue around in his mind for the better part of two weeks. In the end, he decided to keep the photos out.

Next was the issue of how to refer to the various individuals the jury would be hearing from and about. Whether or not he decided to put his client on the stand, Jaywalker already knew that he would be “Darren” and not “Mr.
Kingston,” as he was sure Pope would call him. But in Jaywalker's mind, Darren was young enough—and would prove likeable enough—to be called by his first name. In proverbs, familiarity may breed contempt; at trial, handled properly, it was far more likely to breed empathy.

The women posed another problem. To refer to them as “victims” conceded that they were, that they'd indeed been attacked. But Jaywalker was fully prepared to do just that. This wasn't a
What happened?
trial; it was a
Whodunnit?
To refer to the victims as “complainants” or “complaining witnesses”—terms that were both technically correct—struck Jaywalker as an obvious attempt to deny their status as victims, a denial that might offend the jurors, particularly the women among them. And there were sure to women among them.

“Victims” it would be.

And what of those women jurors? Even with his limited jury trial experience, Jaywalker was already convinced that not only were women more sympathetic and forgiving than men, but that they also reacted better to him on a personal level than men did. A lot of sexual dynamics play out in a courtroom. Jurors are yanked from their personal and business lives, and dropped into an alternative universe of sorts. In addition to everything else about the experience of sitting on a criminal trial jury, for most people it's new, different and exciting. Jaywalker was young, and good-looking enough to make the older women on the jury want to mother him and the younger ones fall in love with him. Pope, with his dark mustache, dark suits, white shirts, rep ties and buttoned-down seriousness, was no competition. Knowing all that was important, and taking advantage of it was fair play. Equally important was knowing that the
men on the jury might resent Jaywalker for upstaging them. They, too, were on a break from their other lives. What hope did any of them have of seducing the pretty woman sitting beside him in the jury box, when forced to compete against the defense lawyer, the solitary defender of the underdog?

So logic seemed to indicate that women were good for his client, men bad.

But this was a rape case. And not some date-rape case, punctuated with flirtations, nuances and
he-said, she-said
competing versions, calling for Solomonic apportionment of blame. No, these were
forcible
rapes, committed at the point of a knife by a total stranger. Worse yet, a
black
stranger. How on earth could Jaywalker choose women jurors on a case that epitomized every woman's worst nightmare?

But he
could
choose them, he decided. Even look for them. He would just have to talk about the reality of the case sufficiently during jury selection. He would have to find women who could deal with it, who could separate the awfulness of the crimes from the only question before them: was Darren Kingston the young man who'd committed them?

But by far the most important tactical decision facing Jaywalker concerned what sort of defense, if any, he wanted to present at trial. Limited experience had taught him that often the best defense was no defense at all. Jurors are aching to know the defendant's side of the story. They want to hear that alibi, that claim of self-defense, that second version of what happened. It was human nature at work. And why not? In our everyday lives, we're accustomed to choosing the version of the facts we like better. It's easier that way.

But Jaywalker's job wasn't to give the jurors what they wanted or to make things easier for them. It was to win. And he knew that putting on a defense and having a defendant himself testify often succeeded in snatching defeat from the jaws of victory.

And not for the reasons someone might think.

It wasn't, for starters, that a defendant's criminal record came out when he testified. It did, to a certain extent, but Jaywalker felt fully capable of dealing with that, even of turning it to his advantage on occasion. Darren's only prior arrest had ended in a dismissal. Even if Pope were permitted to ask him about it, it wasn't a big deal. And Jaywalker would be able to point to the fact that Darren had never before been arrested on a sex charge of any sort, something he wanted the jury to hear.

Nor did he generally hesitate to put a defendant on the stand because he might sound uneducated or stupid, speak poorly, or be forced to admit he was an unemployed illegal alien with a drug habit. Jurors were capable of forgiving stuff like that, as long as they were warned ahead of time.

No, it was none of those things that made him hesitate.

The single strongest thing a criminal defendant has going for him is the burden of proof the law places on the prosecution, that in order to win a conviction, it has to not only prove the defendant's guilt, but also has to do so beyond a reasonable doubt. It's a burden that the judge instructs the jury about at the very outset of the trial and again at the very end. And in between, Jaywalker would remind them every chance he got. By the time a Jaywalker jury was given a case to deliberate and decide, the words were second nature to them. They might forget the judge's
name, the crimes charged and their own phone numbers. But they would remember reasonable doubt.

The problem is, all that goes out the window when the defendant—or just about any other defense witness, for that matter—takes the stand. The human mind, it turns out, is utterly incapable of weighing one story against another while at the same time factoring reasonable doubt into the equation. The judge can tell them to do it, the defense lawyer can tell them to do it, but when it comes right down to it, it's asking the impossible.

Already, Jaywalker had learned all this the hard way. He'd begun his trial career by putting defendants on the stand and calling their mothers to account for their whereabouts at the time of the crime. His efforts were rewarded with apologetic convictions and assurances that he'd done a much better job than the prosecutor, but…