Guilty as Sin (21 page)

“Still, Barnett says no. He's clean now. He's got a good job and an apartment of his own. He's reestablished his ties with his young daughters. Six times he's offered an opportunity to make some easy money and score some drugs. Remember that phrase, too, jurors.
Offered an opportunity.

“Six times Barnett says no to that offer. Six times he turns down that opportunity. Until the seventh time, when Clarence Hightower plays his ace and tells Alonzo Barnett that Barnett owes him this favor in return for Hightower's having saved his life. And on that seventh time, Barnett finally succumbs to the pressure. He gives in.

“But that's not all we learn about Hightower. As the trial progresses, we learn, for example, that he's greedy. Not only does he make money on the deals he convinces
Barnett to get involved in, but he mysteriously ends up with some of the drugs, too. We know where he gets the money from. Barnett gives it to him. The drugs are a different story, something we're left to wonder about. We know he didn't get them from Barnett, because Barnett gave all the drugs he got to Agent St. James. How some of those very same drugs managed to end up in Hightower's pocket later is anyone's guess.

“Or is it?

“Next we learn that Clarence Hightower is one unbelievably lucky man. Because despite the fact that he played a pivotal role in the sales, introducing Agent St. James to Alonzo Barnett, he gets arrested not for felony sales but only for misdemeanor possession. Brought to court, despite his long record, he's allowed to plead down to disorderly conduct, not a crime at all. Disorderly conduct. Fifteen days. Time served. Faced with a parole violation that normally would send him back to prison for years, he instead gets his parole terminated early.

“Were all those things really nothing but dumb luck and happy coincidence? Come on, jurors, we're New Yorkers. We weren't born yesterday. We know what it means when somebody tries to sell us something that sounds too good to be true.”

Jaywalker paused for a moment, not only to give himself a moment to rest, but to give the jurors a chance to think about where he was taking them. He'd told them that Clarence Hightower was the key to the case, but he hadn't yet showed them how.

Now it was time.

“So what
really
happened in this case? We've been told a lot of things, you and I. But what
haven't
we been told? What have the cops left out? What is the evidence
telling us, even as two of the prosecution's witnesses are trying their hardest to keep us from hearing it?”

He walked to the defense table and retrieved Defendant's Exhibits B and C, the two photos of Clarence Hightower, carried them back to the jury box and placed them on the wooden rail that was all that separated him from the jurors.

“Dino Pascarella would have us believe that this case began with a phone call. He says it was an anonymous call, so we have no way of knowing who supposedly made it. He makes it a blocked call, so we won't be able to know the number where it supposedly originated. And he makes it an unrecorded call, so we won't be able to hear it. Anonymous, untraceable and unpreserved.

“According to Pascarella, Clarence Hightower was a total stranger to the authorities when he showed up on Alonzo Barnett's stoop. According to Pascarella, the first contact he ever had with Hightower was on the afternoon of October 5, 1984, moments after Barnett's arrest, when Hightower walked up to Barnett and managed to get himself arrested, as well.

“Lieutenant Pascarella is lying about that. And these two photographs, Defendant's Exhibits B and C in evidence, tell us that loudly and clearly and beyond any shadow of a doubt.”

Jaywalker held the photos up in front of him so the jurors could see them again. Even with them facing away from him, he was able to describe them in detail. Defendant's C. The dated one. Taken at Central Booking later on, on the same day as the arrests. In it, a cleanly shaven Hightower, dressed in a faded blue denim work shirt. And Defendant's B. The undated one. Showing Hightower with a three-or four-day stubble of a beard, this time wearing a gray sweatshirt over a blue T-shirt.

“The undated photo is the one taken by Dino Pascarella. Here are his initials, right on the back of it, admittedly written in his own hand. ASP.

“
A
for Andino.

“
S
for Salvatore.

“
P
for Pascarella.

“Although when first asked, Pascarella denied that that particular combination of letters meant anything at all to him. Think about that for a minute.

“Next, Pascarella inadvertently does us a favor. He admits that after October 5, he never saw Clarence Hightower again. So it follows that he couldn't have taken this undated photo of him after that date. And he admits that.

“What's left?

“He took the photo, but he obviously didn't take it on October 5. And he didn't take it
after
October 5. What does that leave? It leaves only one possibility. And that's that Pascarella took the undated photo of Clarence Hightower
before
October 5. And the reason he did so was because sometime before October 5, Hightower was already working as Pascarella's informer.

“There can be no other explanation.

“Sure, Pascarella denies it. And Captain Egan, taking Pascarella's word for it, backs him up and tells us Hightower's name isn't in the book.

“Well, Captain Egan may have been willing to take Pascarella's word for it, but that doesn't mean we have to. For one thing, you and I have the photo that puts the lie to Pascarella's word. And you and I have seen the lengths Pascarella was willing to go to, and the lie he was willing to orchestrate, in order to keep another informer's name out of this case. Finally, you and I know for a fact that Clarence Hightower ended up with the missing
2.55 grams of heroin that could only have come from Pascarella or someone working under his supervision.

“So what really happened in this case, jurors? It turns out we know that, too. We know because it's the only thing that could possibly have happened. At some point—maybe it was late August, maybe mid-September—Dino Pascarella caught Clarence Hightower doing something. We don't know exactly what, because Pascarella won't tell us. And Hightower? Well, all I can say is that as much as we would have liked to hear what Mr. Hightower might have to say, we never got the chance. But you know what? It doesn't matter. What matters is that on that very same day, whenever and wherever it was, Pascarella
flipped
Hightower, convinced him to become an informer. Had Pascarella sent him on to Central Booking to be put through the system, as Alonzo Barnett was, it would have been all over for Hightower. Jail, prosecution, conviction, parole violation. Back upstate to prison, not for days or weeks or months, but for years. So instead Pascarella offers Hightower a deal on the spot. Exactly as Captain Egan tells us it's sometimes done. ‘Make us one good case,' Pascarella tells Hightower, ‘and we'll cut you loose.' And because he finds himself stuck between a rock and a hard place, Hightower agrees. So Pascarella never completes the arrest process. He never books Hightower, never sends him to Central Booking, never submits his name to Captain Egan for inclusion in the cross-index. It's all done off the books. All Pascarella does is take a photograph of Hightower for his own records. He uses an old Polaroid camera they keep in the squad room, and he writes his initials, ASP, on the back of it. And then he no doubt forgets all about it. Until at some point last week, when Captain Egan asks Pascarella if he has a photo of Hightower, Pascarella pulls it out without thinking too
much about it, and without realizing it could come back and bite him in the asp.

“That's what really happened. Because that's the only thing that could possibly have happened. And now we're going to see why it changes absolutely everything for you.”

Jaywalker spent the next thirty minutes giving the jurors a short course in the law of entrapment. He had to be careful to avoid usurping the judge's prerogative to define the law. But that didn't stop him from reading them section 40.05 of the Penal Law in its entirety. He paused at the term
affirmative defense,
explaining how those two words placed the burden of proof upon him and required him to convince them by a preponderance of the evidence.

“But that's a burden we welcome,” he told them. “That's a burden we're delighted to shoulder.” He readily conceded that Alonzo Barnett had made the first two sales and was in the process of completing the third one when he'd been arrested. “But only because he'd been both
induced
and
encouraged
to do so by
a person acting in cooperation with a public servant.
Specifically, Clarence Hightower, acting in cooperation with Dino Pascarella.

“And make no mistake about it,” he told them. “Without Hightower's unrelenting pressure—without his seven different attempts on seven different days, and finally without his insistence that Alonzo Barnett had to help him out in payment for Hightower's having saved his life—those sales simply wouldn't have happened. This wasn't a case of the police merely providing an opportunity for someone already disposed to commit a crime,” Jaywalker told the jurors. “This was a case in which the police, acting through their informer,
manufactured
a
crime that would never have taken place otherwise, not in a million years.

“That's what makes it entrapment, jurors. And that's why it becomes your duty to find Alonzo Barnett not guilty of each and every charge in the indictment.”

His voice was hoarse, and he was just about finished, but not quite. “There's one other thing I want to tell you,” he said. “And it's absolutely essential you understand this. When you come back into this courtroom at the conclusion of your deliberations to deliver your verdict, you should harbor no reservation whatsoever. And a week from now, or a month or a year from now, should someone walk up to you and suggest out of ignorance or stupidity that you acquitted a guilty man, you're going to look that person squarely in the eye. And you're going to say in a calm voice, ‘No, we didn't. We acquitted a man who had succeeded in redeeming himself. A man who never would have broken the law but for the fact that the police and their informer first targeted him and then entrapped him into doing so.' So you tell that person you've got one word for what you accomplished through your verdict. And that word is
justice.

“Nothing more, nothing less.

“Justice.”

 

Two hours and two minutes after he'd begun, Jaywalker turned from the jurors, walked back to the defense table and sat down. Gathering his notes while listening to the judge sending the jurors off to lunch, he felt Alonzo Barnett lean toward him. “No matter what happens,” whispered Barnett, “I want to thank you. You did everything a man possibly could have done for me, and I'll never forget it as long as I live.”

They were nice words to hear, but Jaywalker wasn't so
sure they were accurate. He'd actually had more to tell the jury. He'd been prepared to argue agency as an alternative defense. But the entrapment argument had gone so well, and the jurors' reactions to it had seemed so favorable, that at the last minute Jaywalker had decided to forget about agency altogether.

Now he hoped that decision wouldn't turn out to be a mistake. Which was vintage Jaywalker, of course. Here he'd hit a top-of-the-ninth, bases-clearing triple to give his side a convincing three-run lead, only to blame himself for not having tried to stretch it into an inside-the-park home run.

The other thing he'd left out was the reason the jurors had never heard the testimony of Clarence Hightower. Jaywalker had lost the legal battle to reopen the case, and it would have been improper for him to complain to the jurors about either Pulaski's opposition or the judge's ruling. So he'd had to settle for the rather innocuous comment that he shared the jurors' frustration over never having had an opportunity to hear from Hightower. Hopefully that would help them recall that it had been Pulaski who jumped up and shouted “Objection!” the moment Jaywalker had tried to call Hightower to the stand. Hopefully, too, they'd be able to draw their own conclusions from Pulaski's obstructionism.

Other than those concerns, Jaywalker was pretty pleased at the way things had gone. Although he never, ever allowed himself to feel confident about his chances, he did celebrate after a fashion by treating himself to lunch, something he hadn't done for two weeks straight.

If, that is, you're willing to stretch things and consider a container of iced tea and a bag of Wheat Thins lunch.

 

Jaywalker's self-indulgence and good spirits lasted him all of an hour, ending about thirty seconds into Daniel Pulaski's summation on behalf of the prosecution.

Pulaski spoke that afternoon for only half as long as Jaywalker had that morning. And although Jaywalker would have loved to say that Pulaski spoke only half as well, that decidedly wasn't the case. In fact, Pulaski proceeded to deliver a truly impassioned summation, heaping ridicule upon Jaywalker's assumptions about Clarence Hightower's having been an informer. “Inferences upon inferences,” he called them. “Pure speculation. Totally unsupported by the evidence. And the proof is in the pudding. Both Lieutenant Pascarella and Captain Egan were absolutely forthright in their testimony. They stepped up and volunteered that Investigator Bucknell had been less than honest when he said he saw the defendant push the button for the twelfth floor. Rather than allow that inaccuracy to stand, they came forward on their own and corrected it. In so doing, they not only risked their ranks and reputations, they revealed the name of an important confidential informer. So why on earth should they hesitate to do as much if another informer had been involved? The answer is as plain and simple as it can be. Clarence Hightower wasn't an informer. He never was, and he never will be. You have the sworn testimony of not one but
two
high-ranking police officials to tell you that. A captain and a lieutenant. You've got the word of an experienced federal agent. You've got your own good common sense. Why in God's name would all three of those men get together and decide to risk everything and lie about that? To convict this defendant? To protect Hightower?